FEB/MAR 2005
Volume 11 - No. 1
Research Activities at a Featured Program
SRNT Newsletter
February/March 2005, Volume 11, Number 1
Company Policies to Employ Only Non-Smokers:
How Common and Why?
A few months ago I posted the following question on the SRNT list: "I am looking for reports, evidence and examples of companies that only employ non-smokers. I know such companies exist in England, for example, but have not recently seen surveys of how many, how, why, etc." Although this is discriminatory, I knew from my own research in Britain that some companies do this. I was struck by the fact that one owner of a small company asked not to be identified because he thought it was illegal to have such a policy. In fact it is not.
Many years ago the tobacco industry in the US was lobbying forcefully for passage of state laws banning employment discrimination against smokers. From 1989 to 1993, 25 states enacted such "smokers' rights" laws. An analysis of these laws was published by Malouff and collegues in Tobacco Control and is available online: http://tc.bmjjournals.com/cgi/reprint/2/2/132.pdf . That paper provided a nice summary of reasons why some employers might wish to hire only nonsmokers. Here is an excerpt:
"Why would anyone prefer to hire non-smokers? The answer may differ from organization to organization and supervisor to supervisor. Some possible reasons include evidence that smokers as a group have more job accidents, suffer more work injuries, and create more disciplinary problems at work than do non-smokers; a desire of some companies to avoid worker compensation claims for lung damage that could be due to either smoking or an occupational hazard, such as fighting fires; a desire for physically fit employees, for jobs such as police officer and firefighter; a desire to avoid the appearance of hypocrisy, when a smoker works in a job to prevent or treat dependence on nicotine or some other addictive substance; a need to maintain a super-clean workplace free of even the smell of tobacco on the breath of employees; the higher cost of employer-subsidized life, health, disability, and worker compensation insurance when some employees are smokers; the belief that smokers take more sick leave; the fear that occupational toxins such as asbestos may interact with smoking (even if limited to off-work time) to increase risks among employees; and the desire of some religious organizations to hire employees who follow off-work the non-smoking tenets of the religion."
I wondered how common such a practice might actually be and why employers might elect to adopt such policies. I received information from Belgium, Denmark, England, Scotland and the USA that suggested such policies might be more common than I had realized. Why? The edited responses provided below, followed by relevant case law, may shed some light on this.
USA. Anonymous employers and employees provided the following comments regarding their hiring policies:
"In our smoking cessation program, staff are required to have been tobacco-free for at least six months, because this relates directly to fitness for the job: how can you give smoking cessation advice credibly with a pack of cigarettes in your pocket? Many US hospitals and other health care providers have such a policy."
"In recent years, US employers (for example police and firefighters) have decided not to hire people who use tobacco, because of their belief that their staff need to be tobacco free to operate optimally, and to save money on health costs and pensions. Many have offered cessation help."
"My employer does not hire smokers. I am pleased that we have this policy because it shows commitment and integrity in support of our public health positions. It is also good to be employed in a smoke-free workplace where my fellow employees do not smell of tobacco and are not sick from tobacco."
"The US Constitution and federal and state civil rights legislation protect against discrimination based on race, gender, age, and disability. There are cogent reasons why some employers might wish to refuse to hire smokers. I don't condone or condemn such hiring policies, but I support the employer's right to adopt a policy to hire only nonsmokers if the employer so chooses."
US Case Law: Twenty years ago the Denver Federal Court of Appeals ruled a nonsmoking employment policy legal in the case of a fired Oklahoma City firefighter caught smoking off the job: "Federal appeals court upholds termination of firefighter for smoking; city had a policy of not hiring smokers" [Grusendorf v. City of Olahoma City, 816 F. 2d 539 (10th Cir. 1987)]. More recently, the Florida Supreme Court upheld the right of Government employers to refuse to hire smokers [North Miami (City of) v. Kurtz, 653 So.2d 1025, 10 IER Cases (BNA) 865 (Fla. 1995); cert.den. 116 S.Ct. [1995 FP 108-9]. In a related case, the courts have upheld a city's policy of refusing to hire tobacco users for firefighting positions, but noted that employers must bargain with the union over fitness standards. [International Association of Fire fighters Local 101 v. City of Duluth, St. Louis County District Court, No. 8720508, June 19, 1987].
United Kingdom: European commentators provided the following comments regarding hiring policies:
"It is a requirement of their job that our staff be non-smokers for the duration of their period of employment with us. Since we lobby for public health and against tobacco they could not expect to convince others of the merits of our case if they weren't convinced enough themselves not to smoke or to give up."
"The stance I've taken and publicized in job advertisements is in view of the nature of the work involved, employees are required to be non-smokers. Interestingly we get applications from smokers who seek the job as a cessation aid."
"We had a firm that, as part of an international organization, had a non-smoking policy. It was challenged in a lawsuit, but the conclusion was that the owner of the firm sets the rules for the company not the employees."
UK Law: Under current UK law it is illegal for employers to discriminate against employees or job applicants on grounds of sex, race, disability, sexual orientation or religion or belief. Addiction to nicotine does not meet criteria for a disability. Parliament decided that addiction to drugs should not of itself give rise to protection under the disability legislation. A smoker whose job application was rejected could only claim disability discrimination if s/he had other health problems associated with smoking, such as lung or heart disease, and this was why their application had been turned down.
References
Malouff J, Slade J, Nielsen C, Schutte N, Lawson E. (1993). US laws that protect tobacco users from employment discrimination. Tobacco Control, 2:132-138.
Martin Raw is an Honorary Senior Lecturer in Public Health Science, University of London, Visiting Professor at the Federal University of Sao Paulo, and Deputy Chair of SRNT/WHO's website www.treatobacco.net