The following article was sent to VSRA from the HR folks at the Shipbuilders Council of America (SCA). Some food for thought.
To improve health and cut costs, a large corporation has begun firing smokers. But two attorneys are suggesting a better way.
January is traditionally a month in which people resolve to change their habits. Those who overeat try to diet. Those who disdain exercise suddenly discover the corner gym. And those who smoke ...well, if they work for lawn products maker Scotts Miracle-Gro, they might get fired.
Scotts, with 5,300 workers employed nationwide, has instituted a strict no-smoking policy. Simply put, if you smoke at work or even at home, it can cost you your job. The tool used to find out is tobacco use testing, required of all new hires and done randomly on the existing workforce.
Scotts has proved it isn't kidding around. A Massachusetts worker has already lost his job and is now suing the company.
Firing Smokers Legal in 21 States
He'll likely find, however, that the policy is legal in his and 20 other states, including Scotts' home state of Ohio. The rest prohibit adverse job actions based on use of legal products, including tobacco. Current federal law doesn't mention the issue.
Behind the policy, says Scotts, lie concerns for employee health and for the company's healthcare costs. Management has made it clear it prefers to terminate smoking, not employees. To that end, the company sponsors smoking cessation classes and provides counseling and nicotine patches at no cost to workers.
Scotts' solution may be extreme, but so are the problems of smoking. Studies by the National Business Group on Health calculate that each smoker costs employers nearly $4,000 more in added health insurance premiums and other costs each year than does a nonsmoker. The human toll exacted by cancer and other diseases is far greater... an average of 14 years lost off the average life span.
Is there a legal way to discourage smoking, one that carries more weight than education but that is less drastic than firing?
A Less Drastic Answer than Termination
According to Attorneys Steven J. Friedman and Lisa C. Chagala of the law firm Littler Mendelson, P.C., the answer is yes. It's by providing a reward in the form of lower health insurance premiums for nonsmokers. To do so, however, requires getting around provisions of the Health Insurance Portability and Accountability Act (HIPAA) that prohibit discrimination in premiums based on a health condition. For smoking, however, there is something of a loophole. "HIPAA provides an exception by permitting wellness programs," write Friedman and Chagala, "provided that certain requirements are met."
Those requirements:
1) The "reward" [reduction in premiums] cannot be more than 10% to 20% of the total cost of coverage.
2) The program must be designed to promote health or prevent disease.
3) The program must be available to all similarly situated participants.
4) A reasonable alternative must be available for those for whom it is medically inadvisable to try to meet the standard. The alternative must be disclosed in all program materials.