Where There's No Smoke, There's Still Fire: Repercussions of Smoker-Free Hospitals

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More hospitals are turning away smoker applicants completely, shifting from a smoke-free to smoker-free workplace to drive down healthcare costs. Kevin Troutman, JD, chair of the national healthcare practice at Fisher & Phillips, LLP, says hospital bans on smokers could become a slippery slope. "There may be good reasons for adopting such a policy, but I would be cautious about taking this direction without serious thought," says Mr. Troutman, adding that blanket rules barring people from particular lifestyles or practices can lead to various legal problems.

Many hospitals are enacting these policies after efforts to curb smoking — such as banning it on hospital grounds, offering cessation programs or offering non-smokers lower healthcare premiums — have not enticed employees enough to quit. While there is no reliable data on how many businesses have adopted such no-smoker policies, people tracking the issue say there are enough examples to suggest the practice is becoming more common, according to a New York Times report.

Although it's on the uptick, it's not reaching every corner of the country. A number of states have laws prohibiting discriminatory action against people who use tobacco — which would prevent bans on smokers from going any further. Twenty-nine states have laws in effect that elevate smokers to a protected class, complicating the push towards smoker-free workplaces.

Still, the other 21 states without protective laws for smokers still face potential legal problems from bans. "Somewhere, somebody is probably going to challenge this policy on the basis that it violates the Americans with Disabilities Act," says Mr. Troutman. "Someone may say, 'I have an addiction to nicotine, which is not an illegal substance, and that addiction rises to the level of a disability. Therefore, I need an accommodation.'" Under the law, if an individual can show their nicotine addiction rises to the level of a disability, the employer will, at least, have to consider an associated request for accommodation.

Banning smokers from employment may exclude talented and otherwise productive employees, placing hospitals in a difficult position. It may also raise a conflict of enforcement. For instance, will a talented executive's smoking habit be viewed differently than an X-Ray technician? "It may or may not happen," says Mr. Troutman. "If hospitals adopt this rule, they may say they won't hire smokers and then suddenly realize the hospital needs nurses. Some nurses smoke. Do hospitals want to turn away otherwise qualified nurses for that reason?"

If hospitals are considering stricter policies against smoking, they may want to consider incentives instead of punishment, according to Mr. Troutman. If such a policy is put in place, hospitals must be careful to ensure employees understand the reasons behind. "You have to consider how your workforce will respond to some new rule or prohibition like this," says Mr. Troutman. "It is important for employees to understand your position and you want to be careful that you don't give unions an issue that would resonate with employees they want to organize."

Many smoker-free policies emerged in hospitals in 2010, but that was not the beginning. Cleveland Clinic, for instance, stopped hiring smokers in 2007 and has promoted the policy since. Some organizations test urine for traces of nicotine while others enforce the honor system.  

The National Workrights Institute said the policy may be a can of worms, according to the New York Times report. For instance, if banning smokers from employment does reduce healthcare costs, employers may then seek other opportunities to drive down costs — possibly by restricting employees' consumption of alcohol and fast food or participation in risky recreational activities. Hospitals say hiring smokers is discordant with the health-promoting mission of a hospital while smokers' rights advocates call the bans a "witch hunt" and say nobody should be denied a job because they smoke.

Learn more about Fisher & Phillips.

Read more about smoking and hospitals:

- Massachusetts Hospital Association Unveils Smoke-Free Initiative for Hospitals

- Hospitals Send Message to Smokers: Apply Elsewhere

- Hospital's Ban on Hiring Smokers Raises Questions of Discrimination


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