Humana is the latest addition in a growing list of employers who refuse to hire workers who smoke or use tobacco products.
In an announcement, Humana said that as of today, it will no longer hire workers in Arizona who smoke or use other tobacco products. The ban will be enforced by testing new employees for nicotine use during a pre-employment urine drug screen.
Banning tobacco for its new employees is not new for Humana - they imposed a similar ban in Ohio two years ago. Unlike the Arizona ban, the Ohio ban didn’t test employees for nicotine use. But Humana said that their efforts have worked nonetheless - 78% of Humana’s Ohio employees report being tobacco-free.
Testing for nicotine use is not new in Arizona, either. A new health plan in Maricopa County required employees to submit saliva samples to be tested for nicotine. Testing negative for nicotine means saving almost $500 on insurance premiums relative to those who test positive or refuse to take the test.
Legal experts say nothing under Arizona state law prohibits employers from not hiring smokers. However, in Kentucky (Humana’s headquarters), smokers have been declared a “protected class” under state law. According to the American Lung Association, 29 states and the District of Columbia consider smokers a protected class:
I think we can all agree that tobacco use is bad for you. But for me, the jury is still out on refusing to hire someone because of tobacco use. Those in favor of banning smokers from employment argue that the practice increases worker productivity, reduces healthcare costs, and encourages healthier living. Others argue that these kinds of bans are discriminatory hiring practices, plain and simple. An op-ed piece in the Des Moines Register said that these kinds of policies are “stepping over the line by making jobs contingent on whether people test positive or negative for a substance that is legal to buy and use.”
Others are thinking about the “slippery slope” argument. Dr. Michael Siegel, a professor at Boston University School of Public Health, is a tobacco-control advocate. But he and co-author Brian Houle, of the University of Washington, fear that refusing to hire smokers may lead to the adoption of other selective employment practices, such as not hiring people who are overweight or who have high cholesterol.
What do you think? Are smokers less productive? Should organizations have the right to refuse to hire people whose lifestyles are in conflict with company policy? What about the “slippery slope” camp – do they have a valid argument, or are they just blowing smoke?
One path that may be followed to demonstrate discrimination is Disparate Impact (also known as Adverse Impact). An employer may unwittingly implement restrictive practices that discriminate against protected class members, such as blacks. Disparate impact focuses on the effect of employment practices, rather than the underlying intent. The organization may not have intended to discriminate against protected class members, but the outcome of one of their practices could result in adverse impact, and that may be inappropriately discriminatory. That is, as a result of a protected characteristic, people are adversely affected by an employment practice. One means of demonstrating adverse impact involves showing evidence through the use of statistics. By looking at applicant flow statistics and considering whether there is a significant difference in selection rates between protected groups, you could identify what appears to be a problematic practice because of its effect, rather that its intent. The four-fifth’s rule is used as a guide to evaluate whether an employment practice has disparate impact. There appears to be disparate impact if the hiring rate for the minority group is less than four-fifths (or 80%) of the hiring rate for the majority group. If there is evidence of adverse impact for protected classes, to successfully rebut charges of discrimination, the organization will need to show that the practice is job related for the position in question and consistent with business necessity. By looking at the rates of smoking in the community across protected classes, you would be able to ascertain whether too large a proportion of protected class member job applicants would get rejected. How large a proportion is too large? You would use the four-fifths Rule.
Step 1) Calculate the probable selection ratio for whites (assuming all whites are qualified for an entry-level position unless they smoke).
Step 2) Calculate the probable selection ratio for African Americans (assuming all African Americans are qualified for an entry-level position unless they smoke). The rate for uneducated African American poor men for example is generally high but one would have to use local statistics that reflect the hiring pool.
Step 3) Is the selection rate for African Americans at least four-fifths of the rate for whites?
I can remember hearing a news clip on the radio back in the 1980′s, that said that a study had shown that “Smokers Were More Productive than Non-Smokers”. So, again… when it comes to published “studies” on anything — who knows what to believe. You always end up finding new studies that contradict old studies, that end up being contradicted again by a newer study 10 years down the road.
It’s like with EGGS. — Forever and a day… eggs were good for you. Then in the 1980′s… the entire medical community was saying that more than two eggs per day was bad for your heart, and everybody was being careful not to eat too many eggs. — Then after 20 years of this notion being supported and touted by the medical community, researchers come out with a new study saying —- oh no… eggs are good for you! You can eat LOTS of eggs!
As for this nicotine discrimation business… it should be against the law to discriminate against someone for using ANY product that is legal to purchase and use. I live in northwest Ohio and I’ve heard of two local manufacturing companies that are no longer hiring tobacco users because of these higher health insurance premium issues.
As far as I’m concerned… (and I’ll admit it… I AM an unemployed smoker that’s pretty darn “miffed” about companies being able to get away with this) — but what these companies should rightfully do (or be forced to do) is if they don’t want to pay the higher premiums — allow the tobacco users to “OPT OUT” of the employer’s health insurance program… pay them the additional monies in their paychecks that they would normally pay in premiums for their non-tobacco-using employees… and allow those employees to use that money to purchase their own health insurance elsewhere. — That would be fair, wouldn’t it?
Otherwise, it’s just another new under-handed trick by the “do-good-think-they-know-whats-best-for-everybody-and-think-they-have-the-right” anti-tobacco faction of society.
Amen! I also live in Ohio and am unemployed. If they claim that a smoker is a health risk then what about the grossly obese, they have worse health issues such as complications from their obesity. Or what about the people who drink before they go to work??? The people who are under the influence of beer, wine, liquor are a safety hazard to all. This issue needs to have a class action law suit persued!