Do Smokers Have Privacy Rights?
An Ariz. county will begin testing its employees and offering health insurance discounts to nonsmokers. But is it right to find and penalize those who smoke?
Penalties against tobacco smokers took a big leap forward in 1994: California became the first state in the country to ban workplace smoking, followed by a ban in 1998 on smoking in bars and restaurants. Other places soon followed the Golden State’s lead, and today all 50 states ban smoking in the workplace and 25 completely ban smoking in bars and restaurants. Some cities have even taken the initiative a step further by prohibiting smoking at parks and on beaches.
Yet as health-care costs continue to rise, especially those related to tobacco consumption, some governments are taking the practice of penalizing smokers to a new level. Starting in July, Maricopa County, Ariz., will test its employees for nicotine. Those who pass the saliva test will receive $20 in health insurance discounts per pay period, up to $480 annually. Those who refuse to take the test or don’t turn up nicotine-free pay the full insurance premium.
It’s well known that health care for smokers costs significantly more than for nonsmokers. For every pack of cigarettes sold in Indiana, for example, residents spend $7.57 in health-care costs related to smoking, according to the Indiana Tobacco Prevention and Cessation Agency. Smokers in the Hoosier State visit health-care professionals up to six times more often than nonsmokers, and they’re admitted to the hospital almost twice as often.
But is it right to financially penalize those who smoke? Alessandra Soler Meetze, executive director of the American Civil Liberties Union of Arizona, says no. "I think there are much better and less intrusive ways of doing this," she says, noting that one of the first things to consider should be smoking cessation programs, which are much more effective at helping people quit. "It would probably make more sense for them to take that approach rather than forcing their employees to compromise their privacy rights."
In March, Soler Meetze told The Arizona Republic she opposed the test because it’s an intrusion on privacy—it crosses the line when it comes to an employee’s rights. According to the county’s Non-Tobacco User Premium Reduction program, the Employee Benefits Division will only receive a report showing the saliva test results as either a pass or fail, and because of Health Insurance Portability and Accountability Act regulations, the division also will keep the results confidential.
But Soler Meetze remains concerned about what the policy actually states, and that testing saliva for nicotine is potentially a slippery slope. "It could open the door to all other sorts of discrimination," she says. "There is nothing prohibiting the county from using that information to gather additional information about health conditions -- and that is not the employer’s business."
Ultimately people should be judged based on their ability to perform their job-related functions, Soler Meetze says, "not on whether they smoke when they are off duty or whether they have other lifestyles or unhealthy habits."
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