It started with hospitals and medical businesses. As more and more states adopted strict policies about smoking, state courts began to bump up against a vexing question—the legal system is being called upon to adjudicate the legality of refusing to hire smokers.
The issue has split the anti-smoking world into two camps, and shines light on the fundamental question: Is it legal to discriminate against tobacco consumers, usually known as smokers, for the use of a lawful product? Will courts uphold cases where employees have been fired for “smelling of smoke”?
20% of Americans continue to smoke. As the New York Times puts it, a shift from “smoke-free” to “smoker-free” workplaces reflects the general feeling that “softer efforts—like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers—have not been powerful-enough incentives to quit.”
Join Together reports that under new “tobacco-free” hiring policies, “applicants can be turned away for smoking, or if they are caught smoking after hire. Policies differ by company, but some require applicants to take urine tests for nicotine.”
The chief executive of St. Francis Medical center in Cape Girardeau, Missouri, which recently stopped hiring smokers, said that it was “unfair for employees who maintained healthy lifestyles to have to subsidize those who do not. Essentially that’s what happens.”
The American Lung Association, the American Cancer Society, and the World Health Organization (WHO) do not hire smokers. However, the American Legacy Group, an anti-smoking advocacy organization that does hire tobacco users, argues that “smokers are not the enemy.” In the words of Ellen Vargyas, the group’s chief counsel, “the best thing we can do is help them quit, not condition employment on whether they quit.”
As Dr. Michael Siegel of the Boston University School of Public Health told the New York Times: “Unemployment is also bad for health.”
The issue has broader implications, as yet imperfectly explored. Will it become legal to discriminate against alcohol and drug users in general? How about junk food? Should a company be forced to saddle itself with the likely health costs associated with a junk food junkie?