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Employment and Tobacco Use

As of June, 2013, MetroHealth will refuse to hire tobacco users, joining other local hospitals, such as the Cleveland Clinic (2007) and University Hospitals (2012) that already have such policies. Such a policy is allowed under the employment “at will” legal paradigm in Ohio, combined with the fact that Ohio is one of 21 states that does not designate smokers as a protected class. (Also, smoking is not a federally-protected class, such as race, gender, etc.) Twenty-nine states and the District of Columbia do have such “smoker protection” laws, though approximately four of the states protect discrimination against potential employees engaging in otherwise legal activities outside work hours and beyond workplace boundaries.

Proponents of such policies argue that companies have the right to try to control their medical/insurance costs. Hospitals are said to be “walking the walk” of fostering a healthy environment. Municipalities that impose such policies are being careful stewards of taxpayers’ dollars. Private companies that impose such policies do tend to get a bit of attention, though the right for private companies to test potential employees for (illegal) drug use does not seem to remain controversial these days.

Some opponents of such policies adopt a “slippery slope” approach — will employers screen potential employees for genetic diseases that might be costly to treat down the line, but are beyond potential employees’ control? (Smoking and overeating, arguably, are voluntary and controllable). The Genetic Information Nondiscrimination Act (GINA, Public Law 110-233) prevents employment discrimination (and harassment) based on genetic information, but it seems to allow employers to charge different rates for health insurance. To what extent should employers be able to control what employees do during their off hours? What other mandates may employers impose? Should hospital workers, for example, have to get flu shots to keep their jobs?

A “middle way” has emerged. Smokers or people who refuse to participate in health screening programs may be able to keep their jobs, while being required to pay additional money toward their health care. MetroHealth is not requiring existing employees to quite smoking, but they are encouraging them to do so. The Cleveland Clinic instituted a healthy food initiative on its campus, as well as banning smoking there.

Selected Resources

Wellness Initiatives: Cost Savings Through Cost Shifting to Unhealthy Workers. 32 Health Affairs 468 (2013).

James A. Sonne. Monitoring for Quality Assurance: Employee Regulation of Off-Duty Behavior. 43 Ga. L. Rev. 133 (2008).

Karen L. Chadwick. Is Leisure-Tme Smoking a Valid Employment Consideration? 70 Alb. L. Rev. 117 (2006).

Frank A. Sloan, et al. The Price of Smoking. Cambridge, MA: MIT Press, 2004. OhioLINK

Stephen D. Sugarman. “Lifestyle” Discrimination in Employment. 24 Berkeley J. Emp. & Lab. L. 377 (2003).