From HR NEWS:
Michigan company draws fire for terminating smokers
By Steve Bates
A Michigan health care company has come under criticism for firing or forcing out all of its workers who smoke, even those who do so in their own homes and on their own time.
Weyco Inc. <
http://www.weyco.com/web/>, a benefit services company based in Okemos, Mich., gave employees 15 months? warning, offered smoking cessation assistance to employees who smoke and eventually terminated workers who refused to take a nicotine test to prove that they are tobacco-free.
Company officials say they want a healthy workforce and are willing to take criticism for what they believe is an important principle. ?We?re not telling you you can?t smoke,? said Weyco Chief Financial Officer Gary Climes. ?We?re telling you you can?t smoke and work here.?
Climes told HR News that although the policy was designed in part to cut down on the company?s soaring health care costs, ?our main goal is to improve the health status of our employees. There definitely are cost issues involved,? he added. ?We?re just exercising our right under the law.?
Climes said he could not determine exactly how many company employees resigned between October 2003, when the policy was announced, and Jan. 1, 2005, when it took full effect. Some who smoked and who left might have had multiple reasons. However, he said four people were forced out in recent weeks after refusing to take a nicotine test.
The company?s actions?and similar moves by a small number of other organizations?raise significant legal and social issues, say legal experts and others familiar with the practice. Among them: How far can and should a company go to cut its health care costs? How far should it go to try to protect the health of its workers against their will? What other legal activities might become conditions for termination? Occasional social drinking? Gaining a few extra pounds? Engaging in risky hobbies such as skydiving?
And, of course, is Weyco?s action legal?
Few court precedents
Legal experts say that few court decisions have addressed such company policies. However, they say that in states such as Michigan, where there is no smokers? rights legislation on the books, Weyco?s policy and practices might be legal.
?There?s legal discrimination and there?s illegal discrimination,? said Peter J. Petesch, an employment attorney who is a partner at Ford & Harrison LLP in Washington, D.C. Unless the company?s actions can be shown to violate a specific state or federal law?such as discriminating against a protected class, on the basis of race or religion or the like?it might be difficult for employees and applicants to challenge them successfully in court.
?Although we might feel a sense of moral outrage when a class of people is discriminated against,? said Petesch, ?it may very well be legal. There have been common-law theories advanced? in the effort to have groups such as smokers protected by job bias laws, but ?they have not necessarily been successful.?
Weyco?s Climes, a former smoker himself who knows ?how hard it is to quit,? said that ?our legal counsel reviewed this very closely.?
However, Edwin G. Foulke, an employment attorney with the Greenville, S.C, office of law firm Jackson Lewis LLP and a former chair of the U.S. Occupational Safety and Health Review Commission, said Weyco?s actions could raise issues under the federal Americans with Disabilities Act (ADA).
?I wouldn?t be surprised to see somebody litigate this issue,? he stated. Jury members weighing such a policy ?might ask themselves, ?Is this really fair?? ? he said.
Twenty-nine states have smokers? rights laws. At the same time, many states have laws banning smoking in most workplaces, setting up the potential for confusion and conflict about what workers can do?and where. Some laws and company policies extend smoking bans to outdoor property such as parking lots, and some even try to keep people who have been smoking in the previous two hours from entering a building and bringing some of the haze in with them.
According to the National Law Journal, the Union Pacific railroad company announced last year that it was implementing a no-smoking policy for all employees, both on and off company property. The firm said it questions potential hires about smoking. And Alaska Airlines reportedly has a similar policy, requiring job applicants to pass a nicotine test.
The National Law Journal noted that in a 1987 court case the 10th U.S. Circuit Court of Appeals upheld the right of the Oklahoma City Fire Department to have a no-smoking policy, finding that the rule had a legitimate purpose in promoting health and safety.
But at a private-sector employer whose workers tend to work in offices, a policy barring all smokers appears to be ?extremely drastic,? said Peter P. Fornal, president of Human Resource Consultants in East Greenwich, R.I., and a member of the Society for Human Resource Management?s Employee Relations Panel.
?This is the wrong path?
?It?s punitive as opposed to being positive,? said Fornal. ?If we want to empower and energize our employees, this is the wrong path.?
Some organizations are addressing the financial and health costs of smoking in different ways, such as rewarding workers for healthy behavior rather than punishing them for unhealthy habits such as smoking.
And, in fact, Climes said Weyco?s no-smoking policy is just part of an overall wellness program that does offer incentives for workers to stay or become fit. The firm?s ?lifestyle challenge? pays workers cash for lowering their blood pressure or improving flexibility, and the company pays up to $45 per month toward employee memberships in health clubs.
?We are in the employee benefit business,? said Climes, adding that ?we knew that, being the leader we?d take some heat? for the novel policy. The company?s actions have been debated in recent newspaper articles and on The Today Show on Jan. 26.
The official company policy is that ?Weyco Inc. is a non-smoking company that strongly supports its employees in living healthy lifestyles,? according to the Weyco web site. ?We have a flexible, family-friendly work environment and we offer a competitive salary, complete benefits package and ample opportunity to grow professionally.?
Said CEO Howard Weyers, ?We?re doing this for our company. Our intent here is to improve the health status of our employees. That?s what we set out to do.
?We told people that we would help them? become tobacco-free if they so desired and that a full-time coach on the company staff would assist them with other health-related issues.
Weyco stopped hiring people who smoke in 2003. Climes said everyone on the payroll was tested in January of this year?right up to the CEO. Seven positive tests came back from a breath test. Follow-up urine tests cleared those employees.
Existing employees will be subject to spot nicotine tests at any time. Any who fail will be suspended but permitted to enter a smoking cessation program. A second failed test will result in termination, said Climes.
He noted that as many as 20 Weyco employees have taken advantage of company-paid smoking cessation programs and have become tobacco-free since the policy was unveiled in 2003. ?That?s the success factor,? he commented.
To date, no legal action has surfaced from former employees of the company. However, the issue is likely to remain in the headlines, suggested attorney Petesch.
?What we?re seeing now is a growth in the regulation of off-work behavior that some employers have decided is antithetical to being a good employee for the organization,? he said.
Commented attorney Foulke: ?The question is: Where does it stop??
Steve Bates is managing editor of HR News. He can be reached at
sbates@shrm.org <mailto:sbates@shrm.org>.