Quit smoking and boost your odds

More U.S. job-seekers are facing an added requirement before they can land a job: no smoking at work or anytime.

But, so far in Tennessee, only one hospital company, in Chattanooga, has gone so far as to block smokers from being hired. And some say a 22-year-old state law pushed through by tobacco lobbyists may be playing a role in turning other businesses away from exploring the idea.

Under that 1990-era law, employers are barred from firing employees for using legal “agricultural products” such as tobacco, though there’s no mention about smoking as a factor in decisions on who gets hired.

“That’s a gray area in the statute,” said Kara Shea, an attorney in the employment law practice group at Miller & Martin PLLC in Nashville. “I definitely tell employers in Tennessee: ‘Don’t fire people because (they) smoke.’ Hiring, I tell them that it’s risky, but not illegal.”

The single East Tennessee hospital that makes hiring decisions by taking smoking habits into consideration contends it took that step to set a good example, not necessarily to cut health-care expenses.

“Part of our mission is to create healthier communities and the best place to start that is in our immediate community — our hospitals,” said Brian Lazenby, spokesman for Memorial Hospital in Chattanooga.

Memorial, whose parent is Denver-based not-for-profit Catholic Health Initiatives, turned away a dozen job applicants last year based on the policy it first introduced nearly two years ago.

“We have seen a decrease in the amount of (medical) claims, but we can’t really attribute it to being because of not hiring smokers or any other programs we’re doing to make our employees healthier,” Lazenby said.

A year ago, the board of trustees of Cookeville Regional Medical Center considered adding non-smoking to requirements for being hired at that hospital, but trustees decided against pursuing such a policy.

Steve Qualls, an attorney in Cookeville who chaired the hospital’s board when the policy came up, said questions arose about whether people who were overweight or heavy drinkers, which drive health-care costs up as well, should be subject to similar policies.

“We thought that trying to monitor that would just be too cumbersome and too costly,” Qualls said.

As bans on smoking in public places sweep the U.S., an increasing number of employers — primarily hospitals — also are imposing bans on smokers. They won’t hire applicants whose urine tests positive for nicotine use, whether cigarettes, smokeless tobacco or even patches.

In recent years, smoke-free workplaces became a buzzword as more employers moved to discourage workers from lighting up on the job as part of efforts to improve employee health and rein in rising medical costs.

Now, more employers nationwide are going a step further by requiring urine tests for nicotine and installing new policies against hiring smokers.

Such tobacco-free hiring policies, designed to promote health and reduce insurance premiums, took effect recently at the Baylor Health Care System in Texas and will apply at the Hollywood Casino in Toledo, Ohio, when it opens this year.

In Tennessee, annual health-care costs directly caused by smoking are estimated at $2.16 billion, with smoking-caused productivity losses in the state estimated at $2.96 billion, according to the Campaign for Tobacco Free Kids report.
Unfairness alleged

Not everyone agrees with the don’t hire smokers movement, and even in the public health community the issue stirs a degree of outrage.

“These policies represent employment discrimination. It’s a very dangerous precedent,” says Michael Siegel, a professor at Boston University’s School of Public Health. He says the restrictions punish smokers rather than helping them quit.

Federal laws do not consider this sort of no-smoking hiring policy illegal because they don’t recognize smokers as a protected class, says Chris Kuzynski with the U.S. Equal Employment Opportunity Commission.

There’s no official data on how many U.S. businesses won’t hire smokers, but the trend appears strongest with hospitals, says Lewis Maltby, president of the National Workrights Institute, a nonprofit offshoot of the ACLU that opposes the hiring bans.

“Depriving somebody of a job in our view isn’t the appropriate way to go,” adds Ellen Vargyas, chief counsel for American Legacy Foundation, a Washington-based antismoking nonprofit group. “The people they’re not going to hire are the orderlies, the janitors and the nurses’ aides,” she said. “It’s not the senior administrators, who are very unlikely to be smokers.”

Research studies, meanwhile, have shown that financial incentives of up to $750 per employee paired with cessation information can significantly boost quit rates among workers who smoke.

“Given that smoking is more common among the less privileged, not employing them, or imposing higher insurance premiums on them can be a real double whammy,” said Harald Schmidt, a research associate in the Center for Health Incentives and Behavioral Economics at the University of Pennsylvania.
Law was add-on

The Tennessee law on protecting users of legal agricultural products from being targeted dates to 1990 when that amendment was added to a bill introduced by then State Rep. Roy Herron and others that aimed to prohibit firing of an employee for refusing to participate in or refusing to remain silent about illegal activities.

Herron, a Democrat from Dresden and now a state senator, opposed the amendment brought by then State Rep. Tommy Haun.

“Big tobacco wanted to protect big tobacco and put the amendment in over my objection,” Herron said.

Haun, who is now an insurance agent and lobbyist, said the bill was his own idea and related to his representing Greene County, the state’s largest burley tobacco producing county.

“I had concerns about people losing jobs because of using a legal product,” Haun said.

Some legal observers, however, don’t think that the 1990 law was a deciding factor in how Tennessee employers have established hiring and tobacco use policies in recent times.

“It may have some influence at the margins, but the likelihood that it would be a major factor for many employers would seem to be pretty low since they’re looking primarily at skills, experience and the like,” said Robert N. Covington, professor of law emeritus at Vanderbilt University Law School.