Open Forum: Should This Be Legal?

This isn't a totally new development, as some US based airlines (Alaska comes to mind) and some police and firefighting departments require employees to be nicotine free.

How it squares with libertarian principles being a matter of little interest to me, I've been trying to work this out instead in terms of fairness [leaving aside for the moment the wide diversity among state wrongful termination laws]. My labor union family background at work again, I guess.
Clearly, the company can establish a business purpose for not wanting to hire smokers [greater use of health benefits, therefor higher health care costs; increased absenteeism, etc.] On the other hand, firing present employees who were hired as smokers, and have worked successfully for the company as smokers, seems unfair. I'd defend as fair and reasonable a company policy of refusing to hire more smokers [and of firing anyone hired under that rule who subsequently became a smoker], but of grandfathering-in, so to speak, all employees who were hired before the no-smokers rule went into effect.
Similar issue raised recently in Salt Lake City when a company required all of its employees to take an English language exam, and then fired two Hispanic workers [assembly line workers who did not deal with customers or the general public] who had worked there, sucessfully, for five years or so, because they failed the exam [after taking company-provided remediation course in English]. It is now in court.
The question of whether the company can [or should] require health exams to identify smokers is a separate issue, I think, and a much dicier one. The question of whether it can or should fire smokers would still be there, absent the manditory health exam question. Smokers might be identified in other ways, for example. Again, looking at it purely from the POV of fairness, I could defend manditory health exams designed to uncover health matters directly related to job performance or job safety. In most cases, that would not include uncovering smokers, I would think.

"This seems like a difficult question from a libertarian perspective."

Um, why? The government is in no way involved, each employment contract is between two private parties, there are no externalities and no crime is being committed. What's your concern exactly?

Now, of course, if the employer were, say, a public university, then it gets all befuddled -- not because it's about smoking, but rather because it's about government becoming in something it has no business being involved in.

I am inclined to side with Kip on this one. Stupid still isn't illegal.

Query: is there a "civil right" to be a nicotine adict, and to act out on that adiction?

Raj makes a nice point. The "smokers' rights" movement seems to me to be a lobby for people fighting for the right to slowly kill themselves. The controversy is, in this case, fairly absurd.

If the question is "Should this be legal?" the answer (in the context the question was phrased, that is, from the libertarian perspective), I think, is no. There are risks in allowing an employer to fire an employee for engaging in a legal behavior, even if the behavior may have some impact on the employee's work performance. Smoking is a legal behavior. Accepting the employer's premise for the policy (e.g., smokers cost us more in terms of absenteeism, health costs, other benefits, etc.), what behavior comes next? Big Mac eaters? Those who race cars as a hobby? And of course, it isn't limited to positive acts. Studies have correlated failure to eat enough of certain kinds of vegetables with increased risks of certain kinds of cancers. Under too much stress at home? You're too great a health risk for us here at work. Of course, the employer's rationale cannot be limited to behaviors; it is broad enough to include characteristics, too. Soon, we're just a step away from genetic testing to determine predisposition to heritable diseases.

I recognize, of course, that this employer action is probably legal (assuming no enforceable employment contract exists), and I think it probably would be legal even if engaged in by a state actor. I also draw a distinction between firing an employee (a situation where rights may exist) and refusing to hire an employee (where no such rights have been created).

Um, won't people who chew the gum or use the patch still be fired, even though they aren't prone to the costs inflicted by smokers?

I share Dan's view here. How far are we willing to go in allowing private companies the authority to intrude into private life? This company is already requiring blood testing for nicotine on the premise that smoking increases health care costs. Can they also blood test for levels of enzymes that indicate a high fat diet? Or a high carb diet, if they are convinced that is the key to obesity? How about testing for alcohol? Can they require that their employees work out every week? Can they institute surveillance to see if you own a motorcycle, or if you engage in high risk activities like sky diving? Can they refuse to hire women who are young enough to get pregnant, because that will increase their health care costs dramatically as well? How about firing people who are going through a divorce, since that increases stress and risk of health problems? How aboug genetic testing to determine risk of diabetes or heart disease? Once this premise is accepted, there simply are no limitations upon what a company may do to its employees.
At some point don't we have to draw a line? Surely we can't pretend that the only institution that can be overly invasive in our private lives and decisions is the government?
The one argument I can see is that no company would do this because they wouldn't get enough employees who would put up with it, so the market would correct it. But what if most companies decide to do it? It's hardly a stretch. Remember that well within living memory we faced a situation in large parts of the country where employers refused to hire people solely on the basis of their race. Also remember that more and more companies, perhaps most, are already requiring credit reports and background checks on people before they hire them.

re: smoker's rights
I don't think that "smoker's rights" has any more to do with a "civil right to be a nicotine addict" than the Lawrence decision had to do with a "civil right to engage in sodomy". That puts the burden on the wrong side, I think. It's a question of how much authority we are willing to give the government to regulate behavior that is bad for us. How much of a nanny do we want? I don't smoke, I never have, and I don't understand what might drive someone to do so in the first place. But I also think that our anti-smoking zeal in this country is reaching hysterical levels. I think businesses like restaurants and bars should simply declare whether they are smoking, non-smoking, or mixed. Patrons then have the full choice of whether to go there or not. The bottom line is that I want the government out of the business of protecting people from themselves. I already had a mother.

Sorry to come late to the comments party, but I want to mention this, particularly in response to Dan: In Massachusetts, state law bars police officers and firefighters from using tobacco, even on their own time. The law mandates the firing of any such who uses tobacco. It was put in place, if memory serves, in 1988, with a grandfather clause to allow anyone already-employed to continue smoking.

Ed, with all due respect I think you are indulging in a broken window fallacy, wherein one side of the economic balance scale is counted to the exclusion of the other, resulting in what appears to be a manifestly unjust conclusion.

In this case, the neglected other side of the balance is that companies who do not pry into their employees' private lives will benefit from having cheaper labor, better relations with their workers, lower costs in hiring (hey, drug tests do cost money), and above all a more diverse, risk-taking, and ultimately creative workforce.

carpundit: Thanks for pointing out the MA law. I suspected that there were laws like this on the books, but I've never looked into it. As I said, I think such a law probably is constitutional, even if it deals with state action. My response was premised on whether it should be allowed.

Carpundit's description of a purported MA law (or regulation) strikes me--a MA resident and lawyer--as being sufficiently off the wall to compell me to as for a citation.

>as for a citation

"ask for a citation"

Jason wrote:
In this case, the neglected other side of the balance is that companies who do not pry into their employees' private lives will benefit from having cheaper labor, better relations with their workers, lower costs in hiring (hey, drug tests do cost money), and above all a more diverse, risk-taking, and ultimately creative workforce.
Well I certainly hope this is the case, I'm just not convinced that it is. As I said, we have examples from relatively recent history where the market did not control such irrational discrimination, or even encouraged it (because people would refuse to go to a business that hired blacks, for instance). I do understand the economic argument here, I'm just not sure it's entirely true. I'm just extremely uncomfortable with this kind of invasion of privacy, whether by a company or a government. Either one is in a position to exert authority over me in heinous ways.

raj,

GENERAL LAWS OF MASSACHUSETTS
PART PARTIzMV-RP.
ADMINISTRATION OF THE GOVERNMENT

TITLE VII.
CITIES, TOWNS AND DISTRICTS

CHAPTER 41. OFFICERS AND EMPLOYEES OF CITIES, TOWNS AND DISTRICTS

REGIONAL POLICE DISTRICTS
Chapter 41: Section 101A Police officers or firefighters; tobacco smoking

Section 101A. Subsequent to January first, nineteen hundred and eighty-eight, no person who smokes any tobacco product shall be eligible for appointment as a police officer or firefighter in a city or town and no person so appointed after said date shall continue in such office or position if such person thereafter smokes any tobacco products. The personnel administrator shall promulgate regulations for the implementation of this section.

Apparently, things like heart disease are considered self-inflicted injuries for smokers under this law.

When I was in the Canadian Army, we were told that we could be punished for getting a sunburn, as that is also considered readily avoidable, and therefore a self-inflicted injury.

This story exemplifies the primary philosophical differences I have with libertarianism. For many people, it is already the case that the corporation for whom we work exercises as much power over our lives as any level of government. I don't think "personal freedom" means further reducing the power of our /democratic/ governments in favor of our /bureaucratic/ corporations.

If personal freedom is worth fighting for, I believe it's necessary to fight also against these corporate powers. I see no evidence that new technology or philosophy has given us any way to effect this other than through collective government, which requires compromise.

I am inclined to agree with Kevin. Unrestricted Libertarianism (I know, redundant) assumes a view of *rationality* in humankind that does not frankly exist (note, I do not confuse rationality with altruism, which is not within the concern of Libertarianism). This can result in manifest injustice that does not autocorrect, at least not within several generations. I am greatly concerned with the degree to which factors, NOT directly related to the scope of a job or its duties can become a criteria for employment. What happens when some RR figure decides that he believes the health consequences of homosexuality compell him to bar employment to all gay applicants and employees AND, believes he is empowered to conduct investigations into the private affectational conduct of his applicants and employees to ferret out same?

I don't really want this to turn into an argument over libertarianism, at least that wasn't my intent. I'm a small 'l' libertarian, so I'm not at all bothered if it turns out that my opinion is at odds with most others who consider themselves libertarians. And on top of that, I'm not sure what my opinion is at this point, which is why I asked for the opinions of all the smart folks who hang around here. I'm hoping that Rowe and Sandefur will weigh in at some point as well and I can hear their thoughts on it. I certainly can see Kip and Jason's argument that the market will control these things and therefore the business owner has some leeway. But at the same time, I'm very uneasy about the idea of businesses requiring blood tests to make sure we're not doing unhealthy things and that strikes me as being as invasive as the government doing it.
It doesn't really matter much to me what institution is inserting itself into my private life, I don't much like it, and this just strikes me on a visceral level as being over the line. But I recognize that reaction as being mostly visceral, so I'm looking for arguments on both sides that might help move it into the cerebral where it probably belongs.

In the UK Tony Blair has given the job of Minister for Health to John Reid, a smoker.

Dave S., thanks for saving me the trouble. I see that my 1988 memory was correct.

Raj, nyah, nyah, nyah, nyaaaah, nyah.

CP

Should a company be able to fire an employee for smoking? Wrong question*. Is it legal? Right question, and probably the answer is yes in most states. Should a company be able to require drug tests of employees not engaged in work that would be impacted by such drug use? No. Is it legal? Almost certainly, and anyone who works for a company that does this sort of thing deserves what he gets.

*I say wrong question, because the true question is whether a company should be able to fire a worker who does not have an employment contract for any or no reason at all (excluding certain reasons not allowed by federal or state law, like racial discrimination). I think the legality has been settled for some time in many if not most states: employement is at the employer's pleasure.

ED said: "I don't think that 'smoker's rights' has any more to do with a 'civil right to be a nicotine addict' than the Lawrence decision had to do with a civil right to engage in sodomy'." -----

For my part, in this particular case I think you've drawn a distinction without a practical difference. Whether a person has a "civil right" to slowly kill herself, or simply a "protected liberty" (per Lawrence) to slowly kill herself, it still seems to me that it's an absurd thing to litigate on the part of the "aggrieved" party.

I do see the other side of the argument, though, in regard to legally paternalistic laws. I resolve the question by placing the burden on smokers, to show that their liberty interest is such that it deserves protection as against whatever deleterious public health consequences that may result from smokers' exercise of that liberty.

It may very well be that my placement of the burden simply enacts a different but still paternalistic law to the benefit of non-smokers over smokers. I think that would be a fair criticism of my position. Another valid criticism would be that the burden is *always* on the government to provide at least a rational basis where it wants to restrict anyone's liberty. My rejoinder would be that if we were to accept the proposition that the government has a legitimate interest in (i.e. a rational basis for) regulating certain (or really, any) public health issues, that the fundamental ridiculousness of the "smokers' liberty" argument trumps any concerns we might have over what I consider to be a very minor imposition on their liberty (i.e. just where smokers may do what they are otherwise at liberty to do).

Still, I'm open to anyone's argument to the contrary.

E

carpundit at January 10, 2005 04:55 PM

Dave S., thanks for saving me the trouble. I see that my 1988 memory was correct.

Raj, nyah, nyah, nyah, nyaaaah, nyah.

I'm not sure what this last is about. It strikes me that people should be expected to provide evidence for their purported statements of fact when they are requested to do so. That is certainly the case in connection with scientific papers, and, to a lesser extent legal arguments. I don't see why that should be any different on a blog that attracts intelligent posters.

My earlier comment was directed to the fact that people--even very smart people--oftentimes mis-remember details regarding facts that they reference. As should be evident, the devil usually is in the details. And I'm no exception.

On the other hand, now that we have the citation to the MA law that you were apparently referencing, we can do a bit of investigation to see how it might have been--you know--applied. Things are rarely as simple as one might believe.

Crap. I just remembered that the original question asked whether the corporation should legally be able to refuse employment to anyone who smokes at any time. In that case, I default to the "freedom of contract" arguments made by others in their comments.

Thank you for your indulgence.

E

Gotta admit; I thought it about it, and I can't decide either.

For my part, in this particular case I think you've drawn a distinction without a practical difference. Whether a person has a "civil right" to slowly kill herself, or simply a "protected liberty" (per Lawrence) to slowly kill herself, it still seems to me that it's an absurd thing to litigate on the part of the "aggrieved" party.
I'd say it depends on the nature of the grievance. Take a business owner in New York who owns a cigar bar. It's advertised as a cigar bar. Everyone knows it's a cigar bar. If you don't want to be around smoke, that's the last place you ought to go. I think the owner has a major grievance against the city for shutting him down, and I don't think it's a silly thing to litigate at all.
It may very well be that my placement of the burden simply enacts a different but still paternalistic law to the benefit of non-smokers over smokers. I think that would be a fair criticism of my position. Another valid criticism would be that the burden is *always* on the government to provide at least a rational basis where it wants to restrict anyone's liberty. My rejoinder would be that if we were to accept the proposition that the government has a legitimate interest in (i.e. a rational basis for) regulating certain (or really, any) public health issues, that the fundamental ridiculousness of the "smokers' liberty" argument trumps any concerns we might have over what I consider to be a very minor imposition on their liberty (i.e. just where smokers may do what they are otherwise at liberty to do).
I don't think it follows that if we accept that the government has a legitimate basis for regulating public health isssues, that authority justifies any possible intrusion into our private lives. Even if the government has the authority to "regulate public health", that doesn't mean it has the authority to ban fast food, for example. They could certainly make a strong public health case for doing so, but that doesn't mean they have that authority. Even where virtually everyone would concede that government does have legitimate authority on such grounds, it still should be incumbent upon them to do so in the manner least restrictive of liberty.
For example, I would certainly grant you that protecting non-smokers from smoke filled rooms is a reasonable public health objective. But that can be done in a manner that is consistent with liberty or a manner that is inconsistent with it. The same objective can be achieved by requiring businesses to declare on the outside whether they allow smoking or not, giving people the opportunity to decide for themselves whether to go in or not. Or perhaps something in the middle, allow smoking only in a certain number of establishments and have them licensed the way alcohol is. But a blanket ban on smoking in any public place or any business is going too far.

"I'd say it depends on the nature of the grievance. Take a business owner in New York who owns a cigar bar ... I don't think it's a silly thing to litigate at all."

I have to agree in that case, but you're talking about a different group of people with a different grievance. Johnnie the cigar bar owner isn't fighting to protect his right to die slowly in your example; he's trying to protect his livelihood.

Also note that in NY, Art. 13-E, Sec. 1399-q of the Public Health Law provides an exemption for "[c]igar bars that [in the year prior to the effective date of the law] generated ten percent or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors ..." (see http://caselaw.lp.findlaw.com/nycodes/c91/a70.html)

Problem solved.

"I don't think it follows that if we accept that the government has a legitimate basis for regulating public health isssues, that authority justifies any possible intrusion into our private lives ..."

I wouldn't argue any such thing. "Any possible" is a long way from the limited intrusion with respect to location that is the legal reality, at least in NY.

In your fast food example, the people consuming tasty death burgers are affecting only their own health. There's at least a chance (depending on your views of the science behind "second hand smoke") that smokers are impacting the health of other people as well. If that's the case, it should fall upon the people creating the theoretical health hazard to justify the unfettered exercise of their liberty interest in the face of the hazard so created.

"For example, I would certainly grant you that protecting non-smokers from smoke filled rooms is a reasonable public health objective ... [b]ut a blanket ban on smoking in any public place or any business is going too far."

Compromise positions are inherently attractive to me, but I must return to my original argument. The liberty interest we're talking about protecting here is -- please indulge me once again -- the freedom to do something that's really very stupid. I am also free to "flog the dolphin" in my own home, unconstrained by government interference, but I am justly restricted from doing so in public. I'd venture to say that the theoretical harm of that little perversion does not enjoy the empirical justification as you'd find with second hand smoke.

E

Raj,
I was sticking my figurative tongue out at the off-the-wall reference. Sorry - humor is subjective and often hard to convey in typeface.

You were entirely within the bounds of good argument to ask for a citation, which I would have provided except I was going from memory.

As for the application, I recall some firings. One fairly recently, perhaps within the past two years. I know that "do you smoke?" was a (dis)qualifying question on police applications.

This is the first traditional media cite to appear in my Google search:
http://www.seacoastonline.com/2003news/06222003/south_of/35552.htm

This one is a tough one for me, but on the whole I don't agree with the philosophical (as opposed to legal) position of the employer - the assumption that smoking increases health care costs in all cases is fascetious, a small percentage, something like 1/3 of smokers I believe, don't seem to shorten their lives because of their nicotine habit. Thus, the company is punishing people who may not, in fact, be increasing their health care costs.

And if the employer offers family medical benefits, does that mean the employer can require all family members to quit smoking? Should the employer have the right to test the children of employees for tobacco use? What if those children are adults (many college students, for example, continue to qualify for their parents' medical insurance if they are in school full time)?

From a legal standpoint, this might also violate the Americans with Disabilities Act, as addiction can be considered a disability, and nicotine is very addictive.

carpundit at January 11, 2005 08:43 AM

I was sticking my figurative tongue out at the off-the-wall reference. Sorry - humor is subjective and often hard to convey in typeface.

This is true. The problem that you noted is sufficiently large that, on other message boards, some of us have taken to using pseudo-HTML tags such as "/sarcasm" and "/tic" (tic=tongue in cheek), with the backslash "/" indicating "end." No corner brackets for obvious reasons--it screws up regular HTML display.

Actually, we do do that--I'm not being completely facetious. But they are useful indicators when humor or sarcasm is intended.

CPT_Doom at January 11, 2005 02:48 PM

This one is a tough one for me, but on the whole I don't agree with the philosophical (as opposed to legal) position of the employer - the assumption that smoking increases health care costs in all cases is fascetious, a small percentage, something like 1/3 of smokers I believe, don't seem to shorten their lives because of their nicotine habit. Thus, the company is punishing people who may not, in fact, be increasing their health care costs.

I believe you are mixing apples and bananas. It strikes me that the issue of "shorten(ing) their lives" would relate to life insurance, not health care costs. Life insurers have long used smoking as a factor in determining life insurance rates. It may be that smokers also are at elevated risk for illnesses that would be covered by medical insurance (I emphasized the "may," because I don't know for sure) and the company wants to minimize its exposure in that area. Two points in regards that issue.

First, if the company is permitted to use that as a factor--and goes to the extent of requiring blood tests of their employees, query what other factors the company should be permitted to use in determining employment. Once the company has a blood sample from an employee, who is to believe that it wouldn't do a (fairly) complete genetic make-up, and determine the likelihood that they might be subject to all sorts of genetically related problems? And base their employment criteria on that?

Second, it should be evident that much of the problem that I just described follows from the fact that, in the US, medical insurance is largely employment based. I suspect that things like this will eventually lead to enhanced socialization of medical costs in the US. It might take a while, but it will certainly happen. Either that, or medical insurance will be very difficult--and unduly expensive--to get in the US. BTW, those of us who have experience with medical costs in Europe know that costs in the US are idiotically high.

I have to add my two cents. I work at the company in Okemos and there are a lot of pieces of the story that are being left out.

It's really a publicity stunt. If the owner can claim health savings from firing smokers he thinks that he will appear cutting edge and people will sign on to have us administer their health care benefits. The truth is, he has no idea what he will save. He never took the time to figure it out.

There were a handful of people in the end of December that declared themselves smokers and took the severance package. The first week of January we all took a breathalyzer test. Seven people failed, peed in a cup, and were sent home with pay for the rest of the week. All of those seven returned to work the following week after passing the urine test.

There were at least two known smokers who "strangely" passed the breathalyzer test and were not subject to the urine test. This really upset the owner. He paid a lot of money and lost a lot of man-hours from his employees and he didn't even get to fire anyone.

He will be going after over weight employees next. Only the morbidly obese are a protected class. He already has a "lifestyle challenge coordinator". Her full time job is to make us all healthier. It is nuts.

We're in trouble financially and he wants to look like the good guy. He needs to reduce head count and he doesn't have the guts to just fire the useless people. Instead he is using arbitrary methods to reduce head count and he hopes that he won't lose anyone important.

Can he do it? Yes. Are there brown nosers that act like it is a good idea? Yes. Is morale lower than it has ever been in the company? YES!