[Not] Hiring & Firing Smokers
Of the four posts in this series on Smokers & the Workplace, the common action we have seen Delaware employers take is simply not hiring applicants who smoke. Many who implement this type of policy permit current employees to be grandfathered into the new program and do not require them to quit smoking as a condition of continued employment. But that, also, is a viable alternative.
Weyco Inc. stopped hiring smokers in 2003 and prohibited smoking anywhere on company property in 2004. Then, citing evidence on how smokers drive up its health-care insurance costs, Weyco informed its 200 employees that smokers would have fifteen months, until January 1, 2005, to quit smoking. If they didn’t (or couldn’t), they would lose their jobs. Four employees left rather than be tested for the presence of nicotine in their system.
Since Delaware, like Michigan, is one of the states without a “smokers’ rights” law, an applicant who is not hired or an employee who is terminated for smoking would have to look to other statutes for protection. The most likely law would be the Americans with Disabilities Act (“ADA”).
While no Delaware court has addressed the issue, smokers have had little success in other jurisdictions using the ADA to attack their termination. Under the ADA, an employee must show that they have an impairment that substantially limits a “major life activity” like walking, talking, speaking, breathing, etc. While a smoker who develops cancer or mphysema or heart disease from smoking might be protected under the ADA because of the symptoms of those diseases, it is unlikely that smoking alone will be sufficient to invoke ADA protection. As a result, a Michigan state court ruled that an employee’s “addiction to nicotine” was not a disability because it did not substantially limit any major life activity.
Indeed, the U.S. Supreme Court refused to hear a case involving smokers who were rejected from jobs because they had used tobacco within the last year. That refusal let stand a Florida state court ruling that the rejections were lawful because they were based on evidence concerning worker productivity, absenteeism, and public health objectives.
It is unlikely that this hot issue will be tamped out. It pits the right of individuals to engage in a lawful activity off the job against an employer’s right to hire who it wants. In the absence of a smokers’ rights bill in Delaware, it seems that the employer’s rights will prevail in most instances.
Other Posts on Smoking in the Workplace:
DOL Offers Compliance Checklist for Wellness Programs, which discusses the Wellness Program Analysis.