Denied employment due to smoking

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Latest post 10-01-2012 9:24 PM by Drew. 43 replies.
  • 08-15-2012 12:43 PM

    • KevinS
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    Denied employment due to smoking

        I am a Registered Nurse with 15 years of experience. I was recently given a job offer after 2 interviews and told that I would be perfect for this position. I scheduled my employment processing and orientation. When I went in to be processed and do the drug screen the occupational nurse read my health history and said "Do you smoke" and I said yes, as I had indicated on my health questionaire, she then said, when your drug screen comes back positive for nicotine your offer of employment will be withdrawn. I then went to the manager who hired me and she did not know this, she called some people in HR and they said that a new policy came into effect today and no one who smokes can be hired for any position. I feel that since I was already considered the best person for the job and I would not smoke at work and it does not affect my performance that this is blatantly discriminitory. Can they do this? It is the Baptist health system at San Antonio TX.

                                                 Thank You, Lori 

  • 08-15-2012 12:55 PM In reply to

    Re: Denied employment due to smoking

    KevinS:
    I feel that since I was already considered the best person for the job and I would not smoke at work and it does not affect my performance that this is blatantly discriminitory.

    However, it is not ILLEGAL discrimination.  Many employers now have very strict policies about not hiring smokers.  Their productivity is lower (if they take smoke breaks), insurance costs higher health wise, and they have more absences due to smoking related illnesses.

    I too work for a mission based hospital (religion owned) and while we will hire smokers, there are no smoke breaks, they pay more for copays and deductibles on health insurance unless they enroll in smoking cessation, and if an employee comes to work smelling of cigarette smoke we are required to send them home to change. 

    KevinS:
    Can they do this?

    Yes.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 08-15-2012 1:13 PM In reply to

    • Drew
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    Re: Denied employment due to smoking

    They can deny you employment for any reason or no reason at at all --except ones what are expressly prohibited by law --like race, sex, age ----.

    Merit is not the be all to end all. They could deny employment to all but first born if somebody wanted to go there.



  • 08-15-2012 1:19 PM In reply to

    • LG81
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    Re: Denied employment due to smoking

    There are a couple of states (in Tobacco Country) that have laws wherein a person cannot be denied employment based on an employee's or prospective employee's status of smoker or nonsmoker.  Texas is not one of those states.

  • 08-15-2012 1:52 PM In reply to

    • LG81
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    Re: Denied employment due to smoking

    Drew:

    They can deny you employment for any reason or no reason at at all --except ones what are expressly prohibited by law --like race, sex, age ----.

    OP's state does not prohibit discrimination based on a person's smoker status.  However, it is important to understand that several states have discrimination laws outside of those covere under Federal law.  For example, there are some states that do not allow discrimination based on whether or not someone is a smoker.  Unless prohibited by the relevant jurisdiction's law, it is permissible. 

    Another example: There are a couple of states that prohibit discrimination because of a person's physical appearance (including obesity).  One always needs to keep in mind that determinant factors are based on jurisdiction.  For example, if a person is employed in Georgia, that state's laws in regards to both employment and insurance apply.  In terms of employment, it wouldn't matter if the company's HQ was in MI (which is a state wherin that would be prohibited).  Charging higher premiums for an obese person working in GA requiring him or her to attend wellness classes to avoid a higher insurance premium is perfectly legal.  It would not matter that his/her employer or insurance company is HQ'd in MI.  Whilst I'm not an Obama fan, this has nothing to do with acts passed in the legislation of recent years; it was always legal in cases wherein no law prohibits otherwise.

  • 08-15-2012 2:53 PM In reply to

    Re: Denied employment due to smoking

    KevinS:
    I feel that since I was already considered the best person for the job and I would not smoke at work and it does not affect my performance that this is blatantly discriminitory. Can they do this?

    Actually, I disagree with the responses of those that have said that it is clearly not illegal for the employer to deny you employment because you are a smoker. The American with Disabilities Amendment Act of 2008 (ADAA) significantly broadened the scope of coverage under the Americans with Disabilities Act (ADA) by effectively overturning federal court decisions that had interpreted the definition of "disability" very narrowly. The broad scope of the ADAA arguably would include smoking as a disability. Nothing in the Act expressly excludes nicotine addiction from coverage under the Act, as it does addictions for the current use of illegal drugs. The EEOC has stated that it has no formal position on the matter, and so far there has not been any litigation to test whether the courts would accept that smoking would be covered. So this is very much an open question under the ADA. Employers are clearly free to ban smoking in the workplace, but to refuse to hire a smoker simply because he or she smokes outside of work may be a problem. As this is an unsettled issue under the ADA, I suggest that you consult an attorney who litigates ADA employment discrimination claims for advice.

  • 08-15-2012 3:39 PM In reply to

    Re: Denied employment due to smoking

    I think you may be out on a limb on this one, Taxagent, but the OP is certainly free to consult with an employment law attorney. 

  • 08-15-2012 3:53 PM In reply to

    • LG81
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    Re: Denied employment due to smoking

    It would be extremely difficult to somehow demonstrate that nicotine use and additction a disability protected by the ADA.   One may be interest to also look at case law on this topic.  For example, there is a regional airline based in the United States that requires all prospective employees to have been smoke-free for six or more months prior to joining the company.  This policy has been in place for well over a decade.  It has been challenged in court, and there has not yet been a case where the challenger prevalied.

  • 08-15-2012 4:19 PM In reply to

    Re: Denied employment due to smoking

    Beth3:

    I think you may be out on a limb on this one, Taxagent, but the OP is certainly free to consult with an employment law attorney. 

    Until courts address the issue, there is at least the possibility that this is indeed covered by the ADA. If you've read the actual text of the ADA as amended, you'll see just how broad the scope of "disability" really is. While it may strike people as odd that smoking might be covered because they are so used to it not being protected (and indeed if anything laws tend to be hostile to smokers), things can change, and these recent changes to the ADA may indeed be that change. Congress and the EEOC (in its regulations) could have expressly excluded smoking had they wished; they certainly did exactly that with other conditions, like expressly excluding kleptomania, pyromania, and compulsive gambling from the definition of disability. 29 CFR 1630.3(d). Again, smoking in the workplace is not protected, but that doesn't mean that being addicted to smoking isn't covered. By way of analogy, alcoholism is generally a disability under the ADA, so an employer cannot discriminate against someone merely because he or she is an alcoholic. But the employer does not have to tolerate drinking on the job.

    Note, too that the ADA regulations do expressly permit employers to have differing health insurance rates based on additional health risks associated with a disability. Thus, if smoking is covered as a disability under the ADA, it would not change the practice of some employers and their insurers of charging a higher premium for health insurance based on the increased health risk that smoking presents. 29 CFR § 1630.16(f). That will change when the Patient Protection and Affordable Care Act (PPACA), commonly called "Obamacare," takes full effect in 2014. The PPACA in general bars health insurers from charging higher rates based on the employee's health condition after January 1, 2014.

  • 08-15-2012 4:30 PM In reply to

    Re: Denied employment due to smoking

    LG81:
    It has been challenged in court, and there has not yet been a case where the challenger prevalied.

    Unless it was a challenge under the ADA for discrimination that occurred AFTER the effective date of the amendments to the ADA in 2008, that case law is not useful. Congress explicitly stated when it adopted the amendments that it disagreed with the narrow interpretation given the ADA by the courts and the changes to the ADA om 2008 were meant to give it much broader application than the courts had given it prior to the amendments.

    Indeed, in the Act itself (P.L. 110-325, § 2) Congress states its disagreement with the state of the case law prior to amendment:

    (b) Purposes

    The purposes of this Act are–

    (1) to carry out the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by reinstating a broad scope of protection to be available under the ADA;

    (2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;

    (3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;

    (4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”;

    (5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis; and

    (6) to express Congress’ expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term “substantially limits” as “significantly restricted” to be consistent with this Act, including the amendments made by this Act.

  • 08-15-2012 7:30 PM In reply to

    • LG81
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    Re: Denied employment due to smoking

    I do not know whether that particular airline's had any further legal challenges on its requirement for employees to be smoke free (or be smoke free for at least six months prior to employment) since 2008; I do know, however, that the company maintains this requirement to this day.  Many other companies have also cracked down on certain other important matters within the last couple of years.  At any rate, considering smoking to be protected under the ADA would be quite a stretch.

  • 08-15-2012 8:05 PM In reply to

    • cbg
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    Re: Denied employment due to smoking

    As we have consistantly told posters here, with employment law something is legal unless a law says it's not. Regardless of one's feelings on the feasibility of smoking being considered a disability under the ADA, so far no court has said that it is. Therefore, at least in the states where smoking is not a protected characteristic, refusing to hire someone because they smoke is at present legal. Certainly new case law could change that, but what might at some point be illegal is not the same as it being illegal now.

  • 08-15-2012 8:44 PM In reply to

    • Cica
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    Re: Denied employment due to smoking

    I fully understand Taxagent's response.  But the problem you would probably face would be that the employer would then have to deal with employees having allergic reactions, migraine headaches, asthmatic attacks, etc.  triggered by second-hand smoke.  The fact is, that stuff does smell. 

    It would be unlikely that he could accommodate all, therefore, would have to remove the source.  And, if it can't be to a location within the workplace, it would be off the payroll.

  • 08-15-2012 10:09 PM In reply to

    Re: Denied employment due to smoking

    cbg:
    Therefore, at least in the states where smoking is not a protected characteristic, refusing to hire someone because they smoke is at present legal. Certainly new case law could change that, but what might at some point be illegal is not the same as it being illegal now.

    I disagree. If it is illegal under the ADA, then it is illegal now. Courts don't change or enact statutes, they interpret them. Thus, if the courts hold that under the 2008 amendments that smoking is a covered disability, that means it was illegal for any employer to discriminate on that basis from the effective date of the amendments forward. This distinction is important because employers who discriminate on that basis take a risk of being potentially liable if the affected employee or applicant sues. Your statement above would suggest that employers would be ok to do it until a court reaches that conclusion, and that's not the case if the ADA does, in fact, cover it. Since it is unknown what a court would say, firms therefore take a risk in discriminating on that basis. How large a risk and whether they are comfortable taking that risk is something I'd recommend the employer discuss with an experienced attorney who litigates ADA cases.

    I'd agree with you that there is nothing that says definitively that smoking addiction is covered; but there is also nothing saying definitely that it is not. And that's what I'm pointing out here. I'm not saying it's definitively covered by the ADA. We won't know that until courts start to address it. My disagreement is with those who say it is definitively not covered. Given how the ADA as amended is drafted, along with the revised EEOC regulations implementing those changes, the coverage of the ADA is very broad. Employers need to understand that, and I encounter many who still take a very narrow view of disability, i.e. those who think that unless the employee is in a wheelchair, walking with a white cane, etc., the employee is not disabled. The law covers much more than what most people probably think of when they think of the word "disability."

    I urge folks who disagree with me to first read the statute and regulations (I've provided the links above), and then tell me how you'd separate smoking addiction from other recognized disabilities like alcoholism and drug addiction. I don't see a basis for that in the statute, but I'd welcome your input how that line would be drawn and where in the statute and regulations you find the support for that distinction. You may find that as difficult as I do when you start really applying the language of the statute and regulations. Perhaps a line can be drawn, but I contend that it's certainly not plainly obvious, if it's there at all. Again, I understand why folks would be resistant to the idea, but put aside your view of what the law ought to be or what you think it is and just read the statute for what it says. I think a lot of people would be suprised to see how broadly the law is written.

  • 08-15-2012 10:13 PM In reply to

    Re: Denied employment due to smoking

    Cica:
    But the problem you would probably face would be that the employer would then have to deal with employees having allergic reactions, migraine headaches, asthmatic attacks, etc.  triggered by second-hand smoke.  The fact is, that stuff does smell. 

    Again, and I want to be clear on this, even if smoking addiction is a covered disability, that does not mean employers must permit smoking in the work place. Indeed, they are clearly permitted to ban smoking in the work place, just as an employer may ban drinking alcohol in the work place even though alcoholism can be a disability under the ADA. The issue here is simply whether the employer may discriminate against the applicant or employee merely because he or she has a smoking addiction.

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