KMK Law Management Rights Blog

I came across an interesting article in The New York Times about hospitals and medical businesses in many states adopting strict policies against hiring smokers — Hospitals Shift Smoking Bans to Smoker Ban.  I had just had a discussion with a colleague about this topic so it was already on my mind.  The Times article notes that

About 1 in 5 Americans still smoke, and smoking remains the leading cause of preventable deaths. And employees who smoke cost, on average, $3,391 more a year each for health care and lost productivity, according to federal estimates.

The Article goes on to quote a hospital executive from Missouri who stopped hiring smokers last month.  This set off an alarm bell for me since I know Missouri is on the list of states with off duty conduct statutes that protect smokers from discrimination.  As the Times went on to point out, however, the Missouri statute has an exception for “health care organizations.”  Actually, the Missouri statute states that “not-for-profit organizations whose principal business is health care promotion shall be exempt.”  Perhaps more importantly, the statute also says that “[t]he provisions of this section shall not be deemed to create a cause of action for injunctive relief, damages or other relief.”  Thus, it appears that the Missouri hospital executive did his homework.

If your organization is considering a non-smoking hiring policy or any other aggressive anti-smoking policy, it would be wise to review state laws regarding the subject.  Of course, that might not be the end of your troubles.  Even if state law is no impediment, this kind of policy strikes me as one that invites litigation, perhaps in the form of a disparate impact claim based on statistical differences in smoking rates in local labor pools.  Also, these kind of policies will be used by unions seeking to organize workers who feel that employers should confine their control of employees to the workplace.  On a broader policy level, perhaps Mark Twain was right when he responded to the anti-smoking movement of his day: “I haven't a particle of confidence in a man who has no redeeming petty vices whatever.”