Pros/Cons of Changing
State Smoker Protection Laws – 12/21/05
Q: A program manager from a state with an
existing smoker protection law has been asked to research
the pros and cons of changing its state code, which currently
makes it unlawful for employers to refuse to hire smokers
or other tobacco users.
- For Program Managers in states with established smoker
protection laws (AZ, CA, CO, CT, DC, IL, IN, KY, LA, ME,
MN, MS, MO, MT, NV, NH, NJ, NM, NY, NC, ND, OK, OR, RI,
SC, SD, TN, VA, WV, WI, WY), please share whether these
laws are enforced in any way and whether this issue has
been revisited in your state in recent years.
- For other Program Managers, please give your state's current
legal status on hiring / firing employees based upon a tobacco-related
health status factor.
Please also add your thoughts as to the pros and cons of
establishing tobacco-related and other wellness employee bias.
- Alabama: I am not aware of any laws in
Alabama that pertain to not hiring or firing people who
smoke. Alabama does, however, have a law that allows our
state employee insurance boards to charge $20 more per month
for those who use tobacco products or have a spouse who
use tobacco products. That law passed in the 2005 regular
session. Our state Clean Indoor Air law does require several
things of businesses who do have a tobacco policy. For more
detail, please visit www.adph.org/tobacco and choose the
Policy Tracking System. Once there, select state laws and
you can access the actual text of the state Clean Indoor
- Iowa: Response from Attorney General’s
Office: I understand that Iowa does not have any specific
law guaranteeing the right to smoke to employees. Also I
have been advised that smoking is not a protected activity
under Iowa or national civil rights law. Therefore I know
of no specific provision a smoker could use to protest a
hire/fire decision that had some rational basis. The question
of what is a "rational basis" is a more detailed
legal question than I could answer. I do know that a policy
for YESS (Youth Emergency Services and Shelter) was enacted
that prohibits all employees from smoking based on the argument,
as I understand it, that employees of a youth service organization
have a role-modeling responsibility.
- Louisiana: In Louisiana this law is enforced
and no cases have come up where a smoker has claimed discrimination
based on the fact that they used tobacco. This particular
statute is one that has not been revisited in recent years.
The current Louisiana smoker protection law states:
Prohibition of smoking discrimination
- As long as an individual, during the course of employment,
complies with applicable law and any adopted workplace
policy regulating smoking, it shall be unlawful for
- To discriminate against the individual with respect
to discharge, compensation, promotion, any personnel
action or other condition, or privilege of employment
because the individual is a smoker or nonsmoker.
- To require, as a condition of employment, that
the individual abstain from smoking or otherwise
using tobacco products outside the course of employment.
- A smoker, as referred to herein, is limited to a person
who smokes tobacco.
- Nothing in this Section shall preclude an employer
from formulating and adopting a policy regulating an
employee's workplace use of a tobacco product or from
taking any action consistent therewith.
- Any employer who violates the provisions of this
Section shall be fined up to two hundred fifty dollars
for the first offense and up to five hundred dollars
for any subsequent offense.
Acts 1991, No. 762, §1.
The pros of changing smoker protection laws are that
over time a healthier workforce is developed which will
lead to reduced healthcare costs for both employers and
employees. A change in the law will also help to increase
the number of cessation attempts and increase the use
of cessation services by smokers in order to increase
their job seeking potential. The con of changing the law
is that smokers will argue that their rights are being
- New York: (Response from the Center for
a Tobacco Free New York, which does not hire smokers because
smoking is antithetical to its mission) New York has a smoker
protection law that allows employers to discriminate against
smokers only when smoking would be directly inconsistent
with the performance of their duties - say working for the
American Cancer Society or American Heart Association. Also,
New York requires insurers to use "community rating"
in assessing health insurance premiums, therefore assuring
that smokers don't pay any more than nonsmokers in the same
market for the same insurance.
I agree with both laws. Being a smoker does not, in itself,
make one a less productive employee. Leaving the work station
for frequent smoking breaks and increased absence because
of smoking-caused illness do, but those are performance
measures. An employer has the right to dismiss a less productive
employee or pay her less. Smokers should be informed that
their behavior is likely to impair their productivity, but
discriminating against EVERY smoker because, as a class,
smokers are less productive or more costly is simply unfair
to healthy, productive smokers (there are some) and clearly
the beginning of a slippery slope we don't want to go down.
If an employer is concerned about smokers in the workforce,
and employers should be, he should adopt policies to help
them quit, including assuring that the health insurance
benefit covers smoking cessation.
Which leads us to proposals to make smokers pay more for
health insurance. As a public health professional, I believe
everyone deserves access to health care. Raising the cost
reduces access for a smoker and, by the way, his family.
Again, it is a slippery slope to reducing access and even
denying coverage to anyone with an increased risk of actually
utilizing health care. That includes a lot of us.
- Ohio: Ohio does not have a protection
law. The most recent example of a business that has threatened
to fire smokers is the Scotts Company, whose corporate office
is near Columbus in Marysville, Ohio. If their smoking employees
don't quit by October they will be fired. The company will
provide counseling and NRT to help people quit. One thing
I didn't know until I saw an article from the Billings,
MT Gazette is that the CEO is a member of the CDC Foundation
Board, and interestingly, one of the Scotts Company's board
members is the COO of RJR who made no public comment about
the new policy. Her term on the board ends next month. Scott
didn't say how they would monitor the policy, or at least
I haven't seen anything about it.
- Rhode Island: I think laws to protect
smokers in the workplace are important issues of freedom
of personal choice. To refuse to employ someone because
they smoke is, I believe, a violation of civil rights. We
do not need to earn the health Nazi designation the industry
likes to portray us as. If people smoke on their own, fine.
Let's not let them expose others in the workplace, but they
are on their own otherwise. If we argue that they incurr
more medical costs, we are going down a terrible road to
a punitive approach for anyone who smokes, is overweight,
doesn't exercise, doesn't get a mammogram, doesn't go to
the dentist, etc. These are important protections to keep
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