Seven years ago, in 2012, Delray Beach, Florida "announced a policy that would help the financially struggling city save money – refusing to hire smokers." The RT News reported that "each smoker costs a company or government agency an average of $12,000 in health and disability-related costs." That quote did not identify whether that is an annual or "lifetime" expense estimate. The report noted that other Florida cities had already implemented such constraints, citing Hallandale Beach and Hollywood. Seven years later, the Delray Beach website today warns "The City of Delray Beach is a Non-Tobacco Workplace."
The move had critics. Essentially, they complained that "smoking is a legal behavior." They noted that various other "legal behaviors cause risks to the population." Examples noted included "drinking soda, eating fatty foods, consuming alcohol, (and) sky driving." The critics perceived the consideration of smoking in the employment decision as unfair and discriminatory. A representative of the American Civil Liberties Union was quoted that "we should be as wary of employers becoming privacy-invading ‘Big Brothers’ as we are vigilant about government crossing that line.”
The subject came back into focus recently as Dayton, Ohio announced in August that it would likewise implement "a policy that prohibits city employees hired after July 15 from using nicotine or tobacco." CNN reported the announcement and characterized it as "taking unusual measures to create a healthier environment for its workers." Unlike the policy in Delray Beach, which relied upon smokers self-identifying, Dayton "job candidates will be tested during the screening process, and those who test positive must undergo cessation treatment." A second positive test would result in termination, however, there will be no random testing. Tobacco and nicotine include e-cigarettes and chewing.
Coincidentally, the Dayton effort likewise started in 2012 when officials began "researching the concept of smoke-free workplaces." Some will no doubt find it interesting that seven years have been invested in the path to Dayton's decision. CNN reports that "smoking is the leading cause of preventable death," and that over "7 million people die every year due to tobacco use." Quoting Federal statistics, it concludes that "the United States spends nearly $170 billion on medical care for adults because of it."
Some in Dayton contend that the ban will have minimal effect on hiring. Others contend that recruiting will be a challenge in light of the new policy. The local FoxNews affiliate, Channel 23, reported criticisms similar to those voiced regarding Delray Beach seven years ago, and the restriction of "employees' off-the-clock conduct." Fox reports that "tobacco and nicotine use reportedly is responsible for a significant share of the city's health care costs," but did not quantify it. Surprisingly, this report noted that "multiple experts" who were questioned "could not name another city in the nation that has ceased hiring smokers and nicotine users." Quick Internet research revealed the Florida cities above, and that the New York Times reported on this in 2011, focused on hospitals.
There is also mention in the Fox coverage that "29 states have 'smoker protection' laws," that would prevent similar efforts at excluding smokers. That is echoed by an article on the HRDefenseBlog, that noted although "smokers are not a protected class under federal anti-discrimination laws, statutes in more than half the states and the District of Columbia would potentially prohibit implementation of a policy against hiring smokers." Returning for a moment to the critics references to legal behaviors that involve risk ("drinking soda, eating fatty foods, consuming alcohol, (and) sky driving"), it is unclear whether states have likewise enacted "protection" statutes to prevent or prohibit employer discrimination on those bases (skydiver protection laws?).
In So Federal Law Matters in Colorado (June 2015), this blog discussed the litigation following an employee's discharge for failing a drug test related to marijuana. The employee contended that he had been terminated for his "legal" and off-duty activity (using pot). The Colorado court concluded that his behavior was not "legal," as it violated federal law. Some may see that caveat regarding what is or is not legal as notable as regards the conjecture as to what some employers may preclude next (the so-called "slippery slope" argument, see FoxNews.com).
Thus, there is support for the conclusion that Dayton will not be the first city to go smokeless. One might question whether Dayton will be the last, which seems unlikely in light of the allegations as to what medical care for smokers costs. And, the question of what employers may look to next is likely a valid consideration. In the present economy, perhaps there is less inclination to create constraints on the potential employee population. But, as the age of robotics and artificial intelligence progresses, might the labor demand element of that equation become less influential?
Likely as clear is that the debates regarding individual rights, their impact on the rights of others and on society in general will continue. Whether examples such as smoking are isolated outliers or become the beginnings of trends will be seen in time.
