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Employment Law Blog

Friday, May 13, 2005

Where There?s Smoke . . . You?re Fired!!

I am sure we are all aware that employers are having to find ways to deal with sharply escalating costs of providing medical coverage.  As reported in a recent news story, some employers are thinking ?outside the box? (or should that be ?outside the pack??) and are refusing to hire and even terminating individuals who smoke?even those who smoke only away from the workplace.

This raises issues of discrimination, invasion of privacy, and, some would say, ?big-brother? control.

The news story reports that more than 20 states have passed statutes prohibiting discrimination on the basis of ?lifestyle decisions.?  (Having not researched this fact, I cannot tell you which 20 states these are.  I can tell you that Texas, from whence I write, is not one of them.)

I had to think about this trend of refusing to employ smokers for a while to arrive at my own opinion.  However, being a firm believer in free choice, and thus a proponent of at-will employment, I had to remain true to my principles.  If I choose to smoke, my employer should be free to end our relationship on that basis.  Neither my employer nor my coworkers have any obligation to bear an increased cost because of my choice.  (My husband and I are a split household on this issue.  While he believes the company should be allowed to charge employees who smoke higher insurance rates (as some companies do), he does not believe a company should be able to ?dictate? that its employees cannot engage in lawful conduct while off company time and premises.)

The cost of smoking is felt not only in medical insurance premiums, however.  It also shows up in other areas, such as time away from work due to increased illness.  Additionally, other ?off-the-clock? conduct can certainly lead to termination.  So yes, employers SHOULD be allowed to base employment decisions on whether an individual smokes on their own time and away from work.  Smoking is a choice.  We need to come back to the realization that our choices carry consequences.  We should bear the consequences of the choices we make.  But now I am starting to preach. . . .

I am very curious how others evaluate this trend, and welcome and encourage your comments.

Posted by Patrick Della Valle on 05/13 at 05:24 PM