Employment: USA Smoking Employees

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USA employment update…

Opinion: Refuse to Hire Smokers? What’s Next?

By Pam Parker
Feb 11, 2011
The latest trend in legalized discrimination is against health care workers who smoke, as The New York Times points out in a recent article.
It’s totally understandable for a hospital not to allow smoking on its property. After all, the property belongs to the hospital, and many hospitals are “public.” As a proponent of property rights, I’d agree that only the owners of a property should be able to make that decision.
And it’s understandable for an employer to conduct pre-employment tests for illegal drugs and prescription drug use for which the applicant has no prescription. After all, these people are lawbreakers, and employers would be right not to want to hire them.
But this is where employers must end their discrimination.
To not hire a worker who chooses to use a legal product is wrong. While a hospital, or any property owner for that matter, should be free to make decisions on what may take place on private property, it doesn’t own the bodies of its employees. What employees do legally on their own time is no business of any employer.
Otherwise, we are taking a big step on a slippery slope with no clear end.
What about people who use salt or sugar? Will prospective employees eventually be forced to give a sample in a cup to make sure they’re under some predetermined limit? Will they be subjected to a body mass index test?
Will we start to hear claims of “secondhand obesity” — the danger of obese people making their nonobese friends gain weight?
It reminds me of a 1988 John Carpenter movie in which a drifter finds a pair of sunglasses that allows him to see the subliminal signs everywhere that say “conform,” “obey,” “be healthy.”
Supporters of this kind of workplace discrimination argue that companies are within their rights because smokers cause lost productivity and boost health care costs.
But if lost productivity and health costs are the reason for discriminating against smokers, why shouldn’t this calculation apply to, say, women of child-bearing years? After all, with each and every child she delivers, a woman can take 12 weeks of maternity leave. And each time one of her children is sick, she will take off work to care for that child. That’s lost productivity.
Who costs a company more? The younger nonsmoking woman or the non-child-bearing smoker?
And when it comes to medical costs, every child adds to insurance costs borne by everyone else in the company. Most insurance companies provide either single or family coverage. The size of the family doesn’t determine the cost of family coverage. Isn’t that an extra burden on health care costs?
Should we let companies ban the hiring of young women? Should we only hire people over the age of 50? Of course not!
Using these standards against hiring smokers merely opens the door into further intrusion in our lives, regulating what we do legally by threat of withholding employment.
There’s another problem with this approach. According to the Centers for Disease Control and Prevention, the smoking prevalence among adults in the United States in 2006 was 20.8 percent, or 45.3 million people. To deny employment to many talented workers merely because they use a legal product would put extreme hardship on families from loss of employment (or denial of employment) and lack of health care coverage.
And it would mean that, in many cases, a less-qualified person would be doing the job that could have been done by a more-qualified smoker.
Personally, I’d rather have the skilled and acclaimed heart surgeon who smokes attending to me than the nonsmoking second-rate one. I don’t know of anyone who would disagree.
Pam Parker is co-founder of Opponents of Ohio Bans, which advocates for laws preventing employer discrimination against smokers in Ohio.


At more and more companies, smokers need not apply
By Chris Reinolds Kozelle, CNN
July 8, 2010
Atlanta, Georgia (CNN) — If you’re trying to find a job these days, it might help to get rid of your cigarette habit.
A hospital in the Atlanta suburbs is the latest employer nationwide that is refusing to hire smokers.
Gwinnett Medical Center instituted the policy July 1, but other hospitals, including Cleveland Medical Center in Ohio, also have the policy. The Scotts Miracle-Gro Co., the lawn-care giant, hasn’t hired smokers since 2006.
Steve Nadeau, Gwinnett Medical Center senior vice president of human resources, said the policy is an extension of their efforts to promote better health.
“We believe it’s just supporting good health, we’re a health care provider,” Nadeau said. “We’ve had a smoking prohibition inside … and outside and it’s just really kind of a natural evolution,” he said. Existing employees who smoke will not be fired.
The medical center offers smoking cessation classes and has plans to revamp signage throughout their facility.
Nadeau said the response from focus groups and employees has been “good.”
“We hope it won’t mean we will lose good employees, but I have no doubt there are going to be folks we won’t be able to get. From a policy standpoint it’s the right direction for us,” he said.
But Dr. Michael Siegel, a Boston University professor of public health, said the policy is an invasion of privacy and keeps qualified medical professionals away.
“From personal experience as a physician, some of the best nurses happen to be smokers,” Siegel said. “Are you willing to hire staff that is not the best qualified simply because you’re trying to make this point about how bad smoking is?”
Siegel, who is quick to note he supports smoke-free workplaces, said “regulating someone’s private behavior in their own home … really represents employment discrimination and has nothing to do with qualifications for the job. If the hospital is so concerned about health, you can make the exact same argument about overweight people.”
The rate of smoking among physicians is low, Siegel said. But the rate among nurses is more than 20 percent — higher than the general population.
“This policy will result in the hospital not hiring the most qualified people. You’re eliminating 20 percent of the population,” he said.
The National Institute of Business Management’s website reports that as of 2007, laws in 30 states and the District of Columbia prohibit employers from discriminating against employees or applicants based on the person’s off-duty use of tobacco.
Gary Nolan, a spokesman for Citizens Freedom Alliance: The Smoker’s Club, is annoyed by the ban but supports private businesses’ right to hire anyone they want.
“If you go in for heart surgery, do you really care if your surgeon smokes?” Nolan said.
But in Ohio, Cleveland Clinic officials say the hiring ban in place since 2007 is a success.
“It was a policy directive by our CEO (Dr. Delos Cosgrove) who wanted to fully enhance the idea of a health institution being what it says it is — a healthy place to work,” said Dr. Paul Terpeluk, Medical Director of Employee Health. “He felt health care workers shouldn’t be smokers.”
Since the policy began, 250 potential employees have failed the drug test for nicotine. Cleveland hires 5,000 employees a year, Terpeluk said. Those who fail the test can reapply in 90 days.
“It does make sense if you’re a health care institution, you want everyone to be as healthy as possible,” he said, adding that employees are also given incentives to lose weight.
Hospital officials don’t think the policy affects the quality of employees they hire.
“Cleveland Clinic is a center of excellence and when people apply here they really want to come work at this institution. We don’t want smokers. It’s not in line with our caregiver mission,” he said.
Industries outside health care have also dabbled in banning smokers from employment. Scotts Miracle-Gro not only bans smokers from employment, it fires employees who smoke. Jim King, senior vice president of corporate affairs, said the self-insured company decided smokers’ heath care costs were too high.
“Like everybody else, we were looking at wellness and health care and the drivers of health care costs,” King said. Before the policy, 30 percent of Scotts’ 8,000 employees smoked. Now that number is less than 7 percent.


Tribune Company Ends $100 Monthly Smoking Fee
By Joe Strupp
April 23, 2008
NEW YORK The Tribune Company has ended a $100-per-month penalty for employees who smoke and enroll in the company’s health plan, saying the fee is “inconsistent with the new culture,” the Chicago Tribune reported.
“We’d rather you use your own judgment when it comes to tobacco use, not impose ours upon you,” Gerry Spector, executive vice president and chief administrative officer, said in an e-mail to employees, the paper reported.
The Tribune added that: “about 600 of more than 16,000 employees in the plan acknowledged smoking when they enrolled in October.” The fee, effective Jan. 1, was adopted before Sam Zell, now chairman and chief executive, led the private takeover of Tribune in December.
Spector’s e-mail congratulated those who had quit and gotten their fees refunded. “Quitting is one of the hardest things you’ll ever do,” Spector wrote. The Tribune added that employees will be reimbursed in late May for any fees paid under the restriction and Tribune Company will continue to offer a free smoking-cessation program


An Intrusion — Or A Helpful Boost

By JEFFREY B. COHEN | Courant Staff Writer
November 23, 2007

Employers around the country are looking for ways to lower the cost of employee health benefits and encourage their employees to lead healthier lifestyles.

Earlier this year, the Tribune Co.— which owns, among other things, the Los Angeles Times, Chicago Tribune and The Courant — announced that in 2008 it will charge $1,200 a year above the regular health benefits premium for any employee using its coverage who is a smoker, or who has a dependent who smokes.

The fee is a sore point for smokers’ advocates like George Koodray, who say that such fees are both selective and unfair. Koodray is a volunteer with The Smoker’s Club, Inc. But the fee is popular with people like Helen Darling, head of the National Business Group on Health. Her nonprofit membership organization represents large employers, including 65 of the Fortune 100.
“This kind of philosophy in general is punitive and almost a predatory philosophy towards smokers, because I think they’ve just been an easy target over the past few years.

There are a lot of other lifestyle habits, including overeating — and I wouldn’t imagine that most employers would want to broach that subject, because it would be seen as a really offensive approach to individual employees if we were to categorize people based on their weight levels. … That’s a more politically incorrect approach to take; so, instead, it’s the smokers.

But does anybody want to put their lifestyle choices, to have them priced based on who’s more of a risk societally?

I’m a cigar smoker, and I have only three or four cigars in a given week at the most. … [But should policies like these] include a person who’s at three packs a day and include them with a person who might smoke a cigar or two a week?

Why is it that there isn’t some sort of consideration for those who drink alcohol to excess, or use drugs, for that matter, or engage in other unsafe practices? That can involve all kinds of things, from parasailing to motorcycling. It opens up an entire, unlimited universe.”
— George Koodray
New Jersey state coordinator
The Smoker’s Club, Inc.

———————-
“We think it’s very valuable for employers … [to] reward those who don’t smoke by giving them a nonsmoker’s discount.

You can do it the other way, but there’s just something nice when you’re giving benefits out to try to think of things in the positive way. … But a number of companies do have a smoker surcharge. And however it’s done, doing it is really critical to encourage people to stop smoking.

If you quit, you benefit from not smoking; your spouse or partner benefits; and your children benefit.

And as an employer, you pay all those extra costs [caused by smoking]. This is one where the business case is really simple.

For example, [it’s not so simple with] weight. If you’re really obese, you’re going to have a lot of health problems and you’re going to be a very expensive patient. But there’s a long line between being a little overweight and being morbidly obese. There’s a continuum with weight.

But with smoking, there’s no continuum. There’s no healthy way to smoke or use tobacco.

We think it’s great to get people’s attention with financial incentives.

There are a handful of people who might say, ‘Well, it’s none of anybody’s business that I smoke.’ But they give up the right, it seems to me, to talk about that unless they want to say, ‘I won’t be on your health plan. I’ll get health coverage on my own.’ … [Because] you’re asking your employer to subsidize your terrible behavior, your long-term suicide. And that’s just crazy.”
— Helen Darling, President,
National Business Group on Health


Investigation Concerning Termination of Smokers And/Or Charging Smokers Higher Healthcare or Disability Premiums

In 30 states and the District of Columbia, state law makes it illegal for companies to impose smoking bans on their employees when they are off duty. In addition, the federal employee benefits law, ERISA, prevents employers from discriminating against and/or firing employees, here smokers, to interfere with the attainment of any right under a benefit plan, here the right to health benefits.

Recently, a number of companies, including Weyco and The Scotts Company, have instituted policies to terminate smokers, even if those persons do not smoke at work. The reason cited by companies such as Weyco and Scotts, for adoption of these policies is increased healthcare costs. Click here?for more examples. Both liberal and conservative civil liberties groups have denounced these policies as an improper invasion of employee’s rights to conduct activities on their off hours. (For more information, click here)

There is also a trend toward charging smokers more for health insurance.??A growing number of employers are requiring employees who use tobacco to pay higher premiums, hoping that will motivate more of them to stop smoking and lower healthcare costs. Among the list of firms reported to have such policies to charge smokers higher premiums include Cardinal Health, J.P. Morgan Chase, Meijer Inc., Gannett Co., American Financial Group Inc., PepsiCo Inc. and Northwest Airlines. Such policies may also violate the federal employee benefits law, ERISA.

Cohen Milstein is currently conducting an investigation as to whether such policies violate ERISA and/or state law. If a violation can be proven, reinstatement as an employee, and reinstatement in the plan or reimbursement of premiums (including back benefits) may be available as equitable relief under ERISA (although the scope of available relief under ERISA remains controversial).

If are a current or former employee of a company with such a policy and fall into one of the following categories, please contact one of the persons listed at the bottom of this page:

1. A smoker currently employed at a company which imposes higher healthcare premiums on smokers than non-smokers;

2. A smoker currently employed at a company which terminates persons who smoke; or;

3. A smoker terminated by a company as a result of a no-smoking policy.

For more information, contact:

R. Joseph Barton, Esq. jbarton@cmht.com
Abby Scott ascott@cmht.com
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W., Suite 500
Washington, D.C. 20005
Telephone: 888-240-0775 or 202-408-4600

The law firm of Cohen, Milstein, Hausfeld & Toll, P.L.L.C., is a nationally recognized plaintiffs’ class action law firm and has significant experience in representing employees injured by corporate misconduct. For a more detailed discussion of the firm’s Employee Benefits practice, please click here.


Now, the Stick
Workers Pay for Poor Health Habits
Employers Make Workers Share Costs of Risky Habits

November 13, 2007
By Beth Baker, Special to The Washington Post

Employers frustrated with mounting health-care costs for their workers have tried dangling a carrot to discourage bad habits such as smoking as well as behaviors that can lead to obesity, uncontrolled diabetes or high blood pressure. Now some employers are beginning to brandish a stick, docking pay, hiking insurance premiums or even banning employees from the workplace if they don’t comply with off-site smoking bans.

So far Midwestern companies have taken the lead; only a few Washington area employers have followed. Starting in January, Tribune Co. will require its employees, including 1,200 at the Baltimore Sun, to pay $100 a month more in insurance premiums if they or any of their covered family members smoke.

But implementing such policies might be tough in the Washington area, said Jeff Munn, a health management staffer at Hewitt Associates, a human resources consulting practice in Falls Church, “because the job market is so tight.” Plus, labor leaders say, the area’s u nionized employees, including many in the public sector, would have some protection from changes in benefits.

The Washington-Baltimore Newspaper Guild has filed a grievance over the Baltimore Sun smoking penalty. The case will likely go to arbitration, said Cet Parks, executive director of the Guild local.

But it’s only a matter of time before other local programs penalize unhealthful behaviors, according to Lynn Argenbright, a health-care consultant with PSA Financial Center in Hunt Valley, Md. “More and more clients are considering it,” she says.

A national survey of 450 major employers, released in April by Hewitt, found that two-thirds were moving toward more-aggressive wellness and disease management programs for employees. Almost half were offering employees incentives to participate in health initiatives, compared with just 38 percent a year ago. “The majority of the companies have been focusing on positive incentives, but the employers that have been starting mandatory programs are clearly getting a lot of attention,” Munn said.

“You’ve got one-third of your life spent in the workplace,” said attorney Garry Mathiason, whose San Francisco law firm, Littler Mendelson, recently released a report on employer-mandated wellness initiatives. “It’s an incredible opportunity to take advantage of that time and look at the tie between wellness, absenteeism and medical costs. That’s why the employer is so focused on this.”

Rising health costs are providing impetus. Health insurance expenses are the fastest-growing cost of doing business, according to the nonprofit National Coalition on Health Care. Employers spend an additional $226 billion a year — an average of $1,685 per employee — on absenteeism, low productivity and other indirect costs of individual and family health problems, according to the nonprofit Partnership for Prevention.

Mathiason said his firm has been contacted by hundreds of employers that are adopting mandatory wellness measures, including “one very large employer” in the Washington area that Mathiason said he was not at liberty to name.

Smoking is perhaps the behavior targeted most often by employers. A handful of employers not only ban smoking on their property, they’re also banning smokers from their workforce — in states that permit such actions. (Thirty states, including Virginia, protect employees from being penalized for lawful activity, such as smoking, outside work. The District explicitly protects smokers from employment discrimination.)

In September, the Cleveland Clinic started mandatory nicotine testing for new hires. While it will not hire smokers, it does not fire current employees who smoke.

In 2005, the Okemos, Mich., office of Meritain Health, a provider of self-funded health plans, stopped employing smokers. Employees and their spouses undergo annual health assessments, including being tested for nicotine. Employees were given one year to quit smoking before the policy went into effect. Four who did not stop smoking lost their jobs. The company also announced it would dock $50 per paycheck from any employee whose spouse smoked and refused to take part in a smoking-cessation program. According to the company, all spouses affected have enrolled in such a program and no one has yet been docked.

This year, Scotts Miracle-Gro, the Ohio-based lawn and garden company that has six work sites in Maryland and Virginia, announced it would no longer employ smokers and would conduct random urine tests for nicotine. The announcement marked a change in tactics for Scotts, which has invested millions of dollars in an on-site fitness center at its headquarters and other employee wellness programs.

At least one worker, Scott Rodrigues of Buzzards Bay, Mass., has sued Scotts over the off-site smoking ban. Rodrigues began working for the company in 2006 but was let go after an initial urine test was positive for nicotine.

“There’s almost no protection from intrusions of private corporations into your private life,” said Harvey A. Schwartz, a Boston civil rights attorney who represents Rodrigues. “The argument we’ve made in this case is that what companies do to smokers could be done to people who are overweight or have high cholesterol, or ride motorcycles or sky-dive.”

Scotts spokeswoman Su Lok would not comment on the suit or on how many employees have lost their jobs as a result of the no-smoking policy. “Our intent was to have a culture of wellness for our associates, but also to address the issue of rising medical costs,” Lok said. She added that it was too early to assess the cost-effectiveness of the company’s wellness program.

Other unhealthful behaviors also have come under scrutiny by employers.

Clarian Health, an Indianapolis-based hospital system, drew media attention this summer when it announced that by 2009, employees whose body-mass index (a fatness indicator measured by a person’s weight relative to height) was too high could expect deductions from their paychecks. The company recently backpedaled and said that weight loss would be voluntary and that a worker’s pay would not be influenced by his failure to drop pounds.

Scotts employees who are covered by the company’s insurance must complete a health-risk assessment that looks at family history, lifestyle and health habits or forfeit $40 from their paychecks each month as a surcharge to their insurance premium. If the assessment shows an employee to be at high risk of medical problems, he also faces a monthly penalty of about $65 unless he works with a company-hired coach to improve his health.

“I would be the first to admit when Scotts introduced this, I thought, ‘Are they being Big Brother, poking their noses into something they shouldn’t?’ ” said Bonnie Hohlbein, vice president of finance, global technology and operations for Scotts. But Hohlbein submitted to the assessment, and what she learned led her to make changes.

“It was sort of shocking to see you’re not in the normal [weight] range,” she said. She now works out at the corporate fitness center and eats smaller portions. Today, two years later and 35 pounds lighter, she supports her employer’s carrot-and-stick approach. “It depends on what motivates people, but having the money [penalty] and the nice facility right there helped get me started,” she said.

A similar health-risk assessment, developed by Principal Financial Group of Des Moines, is being used by some companies in Iowa and Michigan. Workers at those firms must complete the exam, which records weight, blood sugar, blood pressure, cholesterol and tobacco use, to qualify for health insurance. Those with a poor score must work with a coach and improve — or face higher deductibles and co-pays.

“We attempt to position this as more of an incentive-based program,” said Jerry Ripperger, director of consumer health for Principal Financial. “But the people who elect not to participate in the wellness activities may have a different term to describe it.”

Is it legal for your boss to look into your off-the-job behavior? Within limits, experts say. The Littler Mendelson study on employer-mandated wellness notes, “While it is questionable whether testing for nicotine (a lawful substance) will receive legal approval, employer-sponsored programs prohibiting smoking in the workplace and discouraging smoking in the workforce are already sanctioned.”

Employers who want to use the stick need to navigate a legal minefield, including the federal Americans with Disabilities Act. Each jurisdiction also has its own set of labor laws: The District, for example, bans discrimination against employees for their physical appearance, which arguably could include obesity, according to Karla Grossenbacher, a D.C. labor lawyer with Seyfarth Shaw.

But experts generally prefer voluntary wellness initiatives to those that are coerced.

Karen Nussbam, executive director of Working America, the education and advocacy organization of the AFL-CIO aimed at people not affiliated with u nions, said the group opposes mandatory wellness programs. “The money spent on those kinds of schemes would be far better spent on lobbying for universal health care or giving workers paid sick days; 50 percent of employees in the private sector don’t have any paid sick days,” she said.

Also unproven is whether the stick works any better than the carrot to change behavior.

“A lot of these approaches are making the assumption that all of these behaviors are completely in someone’s control,” said David Ballard, who heads up health and well-being in the workplace for the American Psychological Association. “But it can be exceedingly difficult to change those behaviors. A simple punishment isn’t enough to make that kind of thing happen.”

What may work better is a workplace environment that encourages wellness throughout the organization, said Ballard and many other wellness experts. Top management needs to model the desired change and offer employees such things as healthful food choices, attractive places to walk and exercise, and a culture that is supportive rather than stressful for employees.

“We’ve treated it only as a person’s problem: blaming the victim because you’re too fat, you don’t exercise and you drink too much,” said Dee Eddington, director of the University of Michigan’s Health Management Research Center, who has studied workplace health costs for 30 years. “What our modeling shows is that we’ve got to start thinking holistically and have wellness as part of the overall mission — health management as a serious business strategy.”

— Beth Baker is a Washington area writer and the author of “Old Age in a New Age: The Promise of Transformative Nursing Homes.”


Investigation Concerning Termination of Smokers And/Or Charging Smokers Higher Healthcare or Disability Premiums
In 30 states and the District of Columbia, state law makes it illegal for companies to impose smoking bans on their employees when they are off duty. In addition, the federal employee benefits law, ERISA, prevents employers from discriminating against and/or firing employees, here smokers, to interfere with the attainment of any right under a benefit plan, here the right to health benefits.
Recently, a number of companies, including Weyco and The Scotts Company, have instituted policies to terminate smokers, even if those persons do not smoke at work. The reason cited by companies such as Weyco and Scotts, for adoption of these policies is increased healthcare costs. Click here for more examples. Both liberal and conservative civil liberties groups have denounced these policies as an improper invasion of employee’s rights to conduct activities on their off hours. (For more information, click here)
There is also a trend toward charging smokers more for health insurance.? A growing number of employers are requiring employees who use tobacco to pay higher premiums, hoping that will motivate more of them to stop smoking and lower healthcare costs. Among the list of firms reported to have such policies to charge smokers higher premiums include Cardinal Health, J.P. Morgan Chase, Meijer Inc., Gannett Co., American Financial Group Inc., PepsiCo Inc. and Northwest Airlines. Such policies may also violate the federal employee benefits law, ERISA.
Cohen Milstein is currently conducting an investigation as to whether such policies violate ERISA and/or state law. If a violation can be proven, reinstatement as an employee, and reinstatement in the plan or reimbursement of premiums (including back benefits) may be available as equitable relief under ERISA (although the scope of available relief under ERISA remains controversial).
If are a current or former employee of a company with such a policy and fall into one of the following categories, please contact one of the persons listed at the bottom of this page:
1. A smoker currently employed at a company which imposes higher healthcare premiums on smokers than non-smokers;
2. A smoker currently employed at a company which terminates persons who smoke; or;
3. A smoker terminated by a company as a result of a no-smoking policy.
For more information, contact:
R. Joseph Barton, Esq. jbarton@cmht.com
Abby Scott ascott@cmht.com
Cohen, Milstein, Hausfeld & Toll, P.L.L.C.
1100 New York Avenue, N.W., Suite 500
Washington, D.C. 20005
Telephone: 888-240-0775 or 202-408-4600
The law firm of Cohen, Milstein, Hausfeld & Toll, P.L.L.C., is a nationally recognized plaintiffs’ class action law firm and has significant experience in representing employees injured by corporate misconduct. For a more detailed discussion of the firm’s Employee Benefits practice, please click here.
http://www.cmht.com/investigation_smokers.php

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