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Smokers' Rights Laws Easily Evaded, says AMA and ASH. Companies Seek to Save $12,000 Per Employee Per Year in Excess Costs.

Companies seeking to save thousands in health and related costs on each employee per year by hiring only nonsmokers are often mistakenly deterred by the existence of so-called "smokers' rights" laws in effect in about 30 states. This total cost averages $12,000 a year per smoker, according to a court which heard testimony under oath in a case in which ASH was involved, and which ruled that the plan was perfectly legal.

But many of the laws are toothless and easily avoided, notes the both the AMA and law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH), which has successfully defended the right of employers to have a smoke-free work force.

LOOPHOLES IN MANY STATUTES

The AMA's American Medical News has pointed out that, even if state laws prohibit employers from refusing to hire smokers, no law requires companies to provide any smoking breaks, nor to permit smoking on the company's property, even outdoors, in cars in parking lots, etc.

Thus, as a practical matter, not permitting smoking breaks, and banning smoking anywhere on company property (even inside cars), will probably deter all but the most determined smokers. News From The American Medical Association [AMA]

Another approach, which has been used successfully for many years in New Hampshire (which has a smokers' rights law) is to simply prohibit anyone from coming onto the property who has any detectable odor of tobacco residue (sometimes called "thirdhand tobacco smoke") about him.

Unless a smoker is willing to bathe, change clothing, and use mouthwash after each cigarette, he probably cannot meet this requirement and need not be hired or employed, despite the law. Employer's Right Not to Hire Smokers Upheld

Also, many of the smokers' rights laws provide only very limited protection. Some, for example, only prohibit companies from making "no smoking" a condition of employment, and do not prohibit paying smokers less, providing them with fewer benefits, etc.

Indeed, some states specifically permit companies to charge smokers more for insurance. These are noted in the list of statute below.

Also, some smoker statutes apply only to state employees, leaving private companies free to not hire smokers. This limitation is also noted in the list below.

Other statutes apply to and protect only current employees, permitting companies to adopt a "no smokers" policy for future hires, an option which might be especially attractive now with so many very qualified unemployed workers competing for a limited number of positions.

VIRTUALLY NO ENFORCEMENT

It appears that even the statutes which seem to provide significant protection are rarely if even enforced. One reason for this, speculates law professor John Banzhaf, is that the monetary damages authorized by the statutes in many situations are so small that lawyers are unlikely to take on the cases and represent the smokers.

Finally, while a growing number of companies are openly announcing their policy of refusing to employ workers who smoke (even off the job), and some are even backing it up with testing to insure compliance, anecdotal evidence suggests that many more companies are simply -- without any written policy -- declining to hire smokers for all or for most positions, or at least giving strong preference in hiring to nonsmokers.

SMOKE-FREE WORKFORCES AND THE LAW

Courts have repeatedly held that it is not unconstitutional for governmental employers to refuse to hire smokers, and that there is no legally protected right to smoke, either on or off the job.

Indeed, except where limited by smokers' rights statutes, both public and private employers may decline to hire smokers, since conventional civil rights laws prohibiting discrimination based on factors like race or gender (so called “immutable characteristics”) do not apply to smokers, nor does the Americans With Disabilities Act [ADA].

One reason is that, unlike prohibiting discrimination based upon characteristics like race, religion, gender, etc., smoking is an activity rather than an immutable characteristic. People cannot change their race or gender, but they can quit smoking, as tens of millions of former smokers have.

Also, the need to save many thousands of dollars every year in health care, disability, absenteeism, and other costs provides a perfectly rational basis for insisting on a smoke-free work force (like a drug-free workforce), a rationale almost always absent in discrimination based upon race or gender.

RATIONALE AND JUSTIFICATION FOR A SMOKE-FREE WORKFORCE

Under our free enterprise system, the companies which create the jobs are largely free to set the employment criteria. The marketplace then determines if the decision is a wise one – something which is obviously happening, since more and more firms now hire only nonsmokers, either openly or without any public announcement.

Many firms in fact restrict what employees can do off the job if they believe their actions will adversely affect the company. Major media organizations, for example, frequently prohibit their employees – even in their off hours – from going on junkets or accepting valuable gifts , or even participating in demonstrations about controversial issues like abortion -- even though the latter involves freedom of speech.

Professors are often prohibited from teaching at other universities, even for free and on their own time. And, of course, pilots and train operators may not drink alcohol on their free time just before coming on duty, and police and military officers are limited in what they can eat off the job, and how slothful they can be, by requirements that they maintain a certain weight and level of physical fitness.

ASH suggests that any company which hires smokers and does not at least charge them more for health insurance is unfairly forcing the great majority of fellow employees who have wisely chosen not to smoke to bear the enormous costs of the co-workers’ smoking. That's because the money the company is forced to spend on treating the many diseases caused unnecessary by smoking could be used to provide more health benefits for all workers, increases in salary, etc.

By ASH.
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