Where there's smoke: employer policies on smoking.

In response to a recent Surgeon General's Report highlighting the dangers of secondhand smoke, employers may be increasingly pressed to balance the rights of smokers and non-smokers. Policies that attempt to control off-the-job smoking pose higher litigation risks than policies targeted specifically at eliminating smoke in the workplace. Failing to provide a smoke-free environment also may pose a risk of litigation to employers.

On June 27, 2006, the US Surgeon General issued a report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, which concludes that "there is no risk-free level of exposure to secondhand smoke." (1) The report recognizes that restrictions on workplace smoking are effective in reducing secondhand smoke exposure, but the only sure means of eliminating secondhand smoke exposure in the work environment is to maintain a smoke-free workplace. In the wake of the Surgeon General's report, employer efforts to address the spectrum of issues posed by smoking and smokers in the workplace are likely to take center stage in a growing national debate. In all states except Montana, the common law doctrine of employment at-will affords an employer ample latitude to make decisions affecting its employees. (2) Despite the broad scope of at-will employment, employers need to consider the legal landscape of statutory restrictions and common law causes of action in making any decisions designed to respond to the growing concern over the dangers of smoke. To avoid "getting burned," employers should take a comprehensive approach, with appreciation for potential claims that could arise from smokers and non-smokers alike.

Even before the release of this latest report from the Surgeon General, news stories had suggested that employers were becoming increasingly aggressive about eliminating smoking in the workplace and its attendant costs not only by imposing on-the-job bans, but also by adopting policies based on employees' off-the-job activities. Weyco Inc., a medical benefits administrator from Okemos, Michigan, gained national attention when it gave employees an ultimatum either to quit smoking or be fired. (3) Kimball Physics, a manufacturer of scientific instruments in Wilton, New Hampshire, has banned not only the use but also the possession of tobacco in company buildings and prohibits "tobacco-residuals" emitting persons (defined as anyone who has used a tobacco product within the previous two hours) from entering its workplace. (4) And, a growing number of employers are imposing higher benefit premiums on smokers or offering incentives for cessation. (5)

These employers are motivated by a number of factors, including rising health care costs, pressure to increase productivity, and resentment of smokers by non-smokers arising from the perceptions that smokers take more frequent breaks and increase the health care cost burden on non-smokers. Regardless of the motivation, employers need to consider carefully the potential legal implications of adopting policies targeted at smokers or making employment decisions based on whether an individual smokes.

No-smoking policies, whether imposed on or off the job, carry consequences for both employers and employees. For employers, such policies may affect a hiring or retention decision, which begs the question: can smokers sue for alleged discrimination based on their status as smokers? For employees, differential treatment of smokers may hit home in the area of health care benefits, often causing smokers to pay a greater share of benefits than non-smokers. Even non-smokers have a stake in how their employers address smoking in their work environments, and some have brought claims that smoking in their workplaces has caused them harm. Future claims of this type are likely to rely on the recent Surgeon General's report and its conclusion that a smoke-free workplace is the only effective means of eliminating the risk of secondhand smoke exposure at work. As the debate about the potential harmful effects of smoking and inhalation of secondhand smoke by non-smokers continues, the potential for litigation in this area is likely to increase.

NO-SMOKING POLICIES IN THE WORKPLACE

A growing number of cities and states have enacted statutes that explicitly ban smoking in the workplace; others achieve this result by imposing bans on smoking in public places, including places where employees work. (6) In these states, employers have a statutory obligation to ensure a smoke-free workplace for employees. In the absence of legislation, employers still may choose to implement a policy that bans smoking on the job and on employer premises. (7) Employers must be careful to monitor and enforce the policy uniformly to avoid running afoul of federal and state anti-discrimination statutes that protect individuals from adverse employment actions or working conditions on the basis of protected characteristics.

To illustrate, enforcement of a no-smoking policy could implicate Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer "... to discriminate against any individual with respect to his ... conditions, or privileges of employment ... because of such individual's race, color, religion, sex, or national origin." (8) Consistent with the language and intent of the statute, courts have long recognized that "Title VII applies ... not only to the more blatant forms of discrimination, but also the subtler forms, such as discriminatory enforcement of work rules." (9) In Moore v. Inmont Corp., (10) for example, an employer successfully defended a claim of disparate treatment on the basis of race brought by an employee whom it terminated pursuant to the company's no-smoking/automatic termination policy. The employee could not produce any evidence that the company had failed to apply its policy in an evenhanded manner to all employees, regardless of race. Although the plaintiff employee in Moore was not successful, Moore reminds employers of two very important propositions. First, compliance with a no-smoking on-the-job policy must be enforced in a consistent manner, and there should be a plan for monitoring enforcement to ensure that the policy is not being used to "target" certain employees while affording leniency to others. (11) Employers should investigate all complaints alleging violations of the no-smoking policy with the same degree of diligence. Second, the consequences for violating the policy should be delineated clearly and imposed uniformly. Inconsistent monitoring or unequal imposition of discipline for violations could lead to a claim for disparate treatment in contravention of federal and state anti-discrimination statutes. (12)

NO-SMOKING POLICIES GOVERNING OFF-DUTY SMOKING

More difficult questions arise when an employer seeks to implement a policy, such as hiring and retaining only non-smokers, that adversely affects an applicant or employee who engages in smoking off the job. Presently, 30 states and the District of Columbia have enacted "lifestyle" statutes that limit an employer's ability to make adverse employment decisions about an employee based upon an employee's lawful activities or use of lawful products while off-duty and away from the employer's premises. (13) As a practical matter, these lifestyle statutes may restrict, to varying degrees, an employer's ability to terminate an employee or deny a job to an applicant who smokes tobacco. (14) A policy of retaining and hiring only non-smokers, therefore, likely would be unlawful in these states.

In states without lifestyle discrimination statutes, some employers are choosing not to hire or retain smokers. These employers also are not without risk of potential claims. Unless the policy is followed for every applicant and employee, an employer may face disparate treatment claims from smokers who are denied employment or retention and who are in different protected classes than smokers who are hired or retained. In addition, if an employer tests applicants or employees for the presence of nicotine, the employer may be subject to a common law tort claim for invasion of privacy (developed by state court judges based on cases, not statutes). This tort claim is defined …