On a bitter cold day in the dead of winter a few years back, I drove into the underground parking garage of a major insurance company. There were dozens of people huddled outside the elevators. I first assumed that there was a fire drill and the building had been evacuated. On second look, I discovered that these were employees who wanted to smoke. They were “outside” — albeit, underground. I think it was simply too cold to smoke at the street level. I wondered whether the exposure to bitter cold would compound the health risks of these people, who had been banished from the indoor space to indulge their habits.
Smoking is frequently in the news. Weyco, a Michigan-based health care benefits company, announced recently that it would terminate any employees who persisted in smoking, on or off the job. The company pointed to the higher cost of health care for smokers — which they estimate at $4,000 per employee — and to the fact that they are in the health business, coordinating cost-effective health care for employers. It is interesting to note that they have one employee in Illinois, which prohibits discrimination against smokers. If this employee chooses to smoke, there is nothing Weyco can do about it. I can almost see the smirk when he or she lights up!
There are currently 29 states that prohibit discrimination against smokers (listed here). That means there are 23 that allow employers to refuse to hire and retain people who smoke. Unlike the use of illegal drugs, smoking is not an illegal activity per se. You just cannot do it in many places. Some of the pro-smoker websites point out that even where smoking is illegal (bars, for example), some judges have ruled that the bar owner has no obligation to enforce the statute.
Workplace fairness, a pro-smoker website, points out the downside of this type of discrimination. Across-the-board policies result in the termination of skilled employees, whose services are valued, even if they are at higher risk for prolonged illness and even if the cost of their healthcare is higher than other employees. They raise caution flags about the loss of privacy in our culture: not only is smoking prohibited on the job, you can be fired for lighting up at home. And they wonder what’s next: if smoking is a cause for termination, what other “unprotected” activities will follow?
The struggle between smoker rights and non-smoker rights is one of the great cultural divides, playing out in workplaces and in public settings across the country. It will be interesting to see what happens in the coming years. There was a flurry of legislative activity in the early 1990s to enact smoker-protection laws. It’s probably safe to assume that list of 29 states with protections for smokers will not change much. Like so many other issues, this one will head into the courtrooms, where conflicting rights will play out in front of a judge — who may or may not slip out the back of the courthouse for quick puff.
