In December, Fairfax County, Va., announced that it was exploring whether it could legally force its employees to quit smoking in an effort to reduce health-care costs. The county also wondered if it could consider tobacco use when making hiring decisions. Ultimately, the county attorney concluded that both ideas are illegal in Virginia, but said requiring smoking cessation classes for tobacco users is not.
Virginia is one of about 29 states plus the District of Columbia with laws preventing "lifestyle discrimination" in the workplace, while the other 21 other states have free reign to explore their options when it comes to cutting health-care costs. It's relatively easy to see why states like Virginia want more discretion in hiring smokers. Smokers cost American employers nearly $200 billion each year between increased medical costs and lost productivity, according to the Centers for Disease Control and Prevention. And it's estimated that smokers take an average of four 15-minute breaks a day beyond what employers already offer as well as use a greater number of sick days.
Banning the hiring of smokers is common in the health-care industry. The Cleveland Clinic in Ohio stopped hiring smokers in 2007; and the Massachusetts Hospital Association and the Baylor Health Care System in Texas followed suit in 2010 and 2011, respectively. Hospitals in Florida, Georgia, Michigan, Missouri, Pennsylvania and Tennessee have similar prohibitions in place. The industry’s argument for such bans is that health-care workers should be held to a higher standard because they’re an example for the public they serve, and they’re consistently in close contact with people who may have a severe smoke allergy.
At the state and local level, governments argue that no longer hiring smokers would free up some much-needed funds.
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Massachusetts has a ban that dates back to 1988 on hiring tobacco users for certain jobs like uniformed state police, local police and firefighters, and corrections employees who care for, supervise or are responsible for the custody of prisoners.
Since 1995 when the Florida Supreme Court upheld the practice of denying smokers employment, the Sunshine State has been a leader in the number of municipal hiring bans relating to tobacco use. The policies, however, differ across the state.
Hollywood, Fla., for example, has a ban on hiring tobacco users and reserves the right to fire any public employee caught using tobacco products. In 2008, Sarasota County banned hiring smokers as a cost-saving measure and to create a healthier workforce. They require potential employees to take a drug test and sign a pledge stating that they haven’t smoked in the past 12 months. The city of Sarasota, however, had to drop its proposed ban when it faced union protests. The sheriff’s offices in Citrus, Hillsborough and Pasco counties do not hire smokers nor does the city of Atlantic Beach. In Broward and Manatee counties, tobacco users pay higher premiums for their insurance, and employees for the latter attend a smoking cessation course for preferred health insurance rates.
More recently, in October, the city of Delray Beach, Fla., (which already offered smoking cessation courses and insurance discounts for not smoking) banned hiring tobacco users. According to the city, the average tobacco-using employee costs $12,000 in additional medical and disability liabilities. By establishing a ban and requiring potential new hires to sign an affidavit stating that they haven’t used tobacco products during the past year, the city expects future savings, but can’t put an exact number on it.
“The general tone around smoking nowadays,” says Delray Beach Human Resources Director Bruce Koeser, “is that everybody knows it can be very hazardous to your health. And beyond that it can cost a self-insured city quite a bit in the way of additional dollars. So why not have a healthier place, a healthier environment and try to cut costs at the same time?”
Not everyone agrees with Koeser, though. A city council commissioner voted against Delray's hiring ban out of concern that it could disproportionately affect low-wage, less-educated potential employees.
Fort Worth, Texas, considered a ban in 2012, but the proposal was dropped in favor of a program that incentivizes employees to quit smoking instead.
Banning certain subsets of people from employment isn’t a new concept -- innovators like Henry Ford used it to determine how much a worker should be paid by investigating the lives of his employees to be sure money was being spent wisely and that they lived virtuously -- but the growing number of employment bans on smokers has raised questions about whether the practice is discriminatory.
The answer is two-fold: Federal law specifies the factors that employers aren’t allowed to use to refuse hiring someone -- such as age, race, disability and gender -- and smokers aren’t considered a protected class. On the other hand, there are the 29 states plus the District of Columbia that ban lifestyle discrimination, but some of these laws allow hiring bans on smokers for certain jobs like those in the public safety and nonprofit industries.
Critics raise concerns about where the line will be drawn and wonder whether employers will also stop hiring other groups of Americans who raise medical costs like the obese or those who engage in risky, but legal, hobbies. And it’s not out of the question. Back in 1990, Athens, Ga., started a health screening program for potential employees and anyone who didn’t meet a certain cholesterol level was deemed ineligible for employment, according to the American Civil Liberties Union.
The bans also open up a host of other questions, including whether governments with such policies are missing out on good employees and whether they actually impact an area’s number of tobacco users. North Miami dropped its hiring ban after having a hard time filling police officer positions and not seeing the anticipated health-care savings. And according to the American Lung Association, there's no data to indicate such hiring bans lead to a decrease in the number of smokers. Other non-smoking programs, like cessation courses and higher insurance premiums, however, have shown some effectiveness. Broward County, for example, has reported a 38 percent decrease in its number of tobacco-using public employees since it imposed a $20 health insurance surcharge.
Whether a hiring ban has a significant impact on the health of citizens is debatable. But, says Koeser, “If you cause one person who was a 20-year smoker to stop because fewer people around him or her aren’t smoking now, then it’s worth it.”