Oswego County Business wrote:Special Report - August/September 2006<hr>
Tobacco, the New Workplace Drugby Laura Thompson
Oswego County BusinessRandom drug testing in the work environment has become a widely accepted fact of employment across America. While once considered controversial and invasive, most of the American workforce now accepts the possibility of random worksite drug testing. When applying for a job today, it is common to be told drug testing may be required.
A recent trend is expanding the concept of "drug" use in the workplace as well as in the privacy of your own home. As anti-smoking laws and legislation sweep the country, some employers are taking matters a step further. They are classifying tobacco as an undesirable substance in their workforce — and they are prohibiting their employees from its use, at work or at home.
The most recent player in the United States to announce a tobacco-free workforce is Scotts Miracle-Gro. In December the company announced it will begin random testing of workers for tobacco use. Scheduled to begin in October 2006, positive results from these random nicotine tests could result in employee termination.
While CEO Jim Hagedorn has emphasized that the company’s focus is on employee health, this policy is viewed as a drastic measure by many. Tobacco is not an illegal substance and this policy creeps into the privacy of employee homes and off-hours.
Hagedorn has repeatedly stated the company will be working closely with all smoking employees to assist them in cessation of tobacco use. The company has recently invested in employee fitness centers and programs, all geared toward a healthier, more active workforce.
Still, those employees unable or unwilling to comply with the October deadline face termination, unless they work in a state that offers legal protection to smokers. Miracle-Gro is headquartered in Marysville, Ohio, with facilities, offices and warehouses scattered across the country. They employ 5,300 people, nationwide.
Twenty-nine states, and the District of Columbia, offer some legal protection to smokers against employer harassment or dismissal due to tobacco use. New York is among them. No federal legislation protects smokers.
The move to designate tobacco as a workplace drug is driven in part by escalating healthcare and insurance costs. Smokers, as a group, tend to develop prolonged and expensive illnesses linked to tobacco use, such as cancer and respiratory diseases.
Public opinion is behind such policies, for the most part. As tobacco related laws and restrictions sweep the country, limiting tobacco use and access has become widely accepted. Most of New York state smoking cessation programs, for example, emphasize limiting public use of tobacco and raising the cost of purchasing the same.
While Scotts is the largest US employer to announce such a policy, it is not the first.
Weyco, a medical benefits administration firm, located in Okemo, Mis., initiated a similar policy in September, 2003. Recently, four members of its 190-person workforce refused to be tested for tobacco use. That refusal cost them their jobs.
In November of 2005, The Centers for Disease Control banned smoking on all of its campuses as well as in government vehicles. The CDC, however, stopped short of prohibiting tobacco use amongst its work force.
In December of 2005, The World Health Organization announced it would no longer hire smokers in any of its international worksites. No plans for nicotine testing were announced, however; WHO plans to rely on a direct question added to the normal application. Additionally, no action has been announced for those persons already employed who use tobacco products.
In New York state, the law which offers smokers some protection is titled "The Lawful Activities Statute." This is a loosely written statute which has not, to date, been legally tested. It was designed to protect employees from employer supervision of their private lives, and legal activities.
According to Walt Pellegrini, of the NYS Governors Office of Employer Relations, no specific division has enforcement jurisdiction over this statute.
"If an employee were dismissed for tobacco use in their private, off-duty time, they would have to go to the courts and raise this law as a shield against their dismissal," said Pellegrini. He further noted he knows of no case where this has occurred, to date. "This law is untested, to the best of my knowledge."
Pellegrini went on to say he disagreed with employer attempts to control employee use of legal products, on their own time.
"A policy that discriminates against a legal act with no nexus to the job is bad business," he said. "It smells—and not of smoke. I’d love to see this policy challenged."
Pellegrini added that there are many employers who will ask prospective employees if they smoke. "It’s not illegal, in New York state, to not hire someone because they smoke. Smoking is not a protected item. Likewise, an employer can refuse to hire someone because he doesn’t like the way the person looks. We can’t control that."
Legal issues arise, however, when an established employee is suddenly subjected to employer controls over private and legal actions.
"What’s next?" asks Pellegrini. "We’re firing you because you’re a Scout leader, and we disagree with their policies toward homosexuals? Or because you belong to a certain church? If we allow this type of life invasion by employers, where does it end?"
Another official within the NYS hierarchy, who asked not to be identified, disagreed.
"Doing something dangerous is not a civil liberty," said this official. "Smoking marijuana is not a civil liberty. Riding a motorcycle without a helmet is not a civil liberty. Smoking is a dangerous activity."
This official went on to say, "You don’t have a right to a particular job. Your employer is not telling you that you can’t smoke. They are saying if you want to do that, you can’t work here."
The official also acknowledged the possible legal problems with a tobacco free employer stance. "Alcohol, for example, is also legal, and equally implicated in expensive health problems, when abused. Will the next step involve an Alcohol Free workforce, and random testing for the same? How about unhealthy diets? We don’t know where this will lead."
Theoretically, under state employment law, an employee dismissed for engaging in a legal activity would be eligible for unemployment insurance payments. Numerous attempts to speak with officials in both local and state offices, however, went unanswered.
Forty-five million Americans continue to smoke.
Smoking-related health care costs, nationally, exceed $167 billion, annually. This total includes both lost productivity costs and actual healthcare costs.
Smoking, on average, reduces life expectancy by 14 years.
