Monday, April 18, 2005

IN MY VIEW: Employee Privacy Protection Bill Needs to Be Debated on its Merits

My post on the recently introduced Employee Privacy Protection Act in Michigan, which would prohibit employers from firing or refusing to hire workers based on lawful, off-the-job behavior that does not directly impair their job performance, has generated considerable debate. The most common argument against the bill (Senate Bill 381) seems to be that there is a hidden agenda behind the filing of the bill, which is to advance the interests of the tobacco industry.

I have to admit that when I began researching the issue for my original post, I expected to find such a motive behind it. Being a tobacco control practitioner and having heard all the rhetoric about this type of legislation being nothing more than a tobacco industry ploy to give smokers the kind of rights against discrimination that are granted to persons based on race, color, creed, sex, age, or disability, all in an effort to protect tobacco industry profits, I naturally expected to find the tobacco industry behind the scenes, using Senator Bernero to push their legislation for them.

But the truth is that I found something far different. The legislation, in fact, appears to be nothing more than a sincere reaction on the part of Senator Bernero to the plight of the four women, now unemployed and in danger of not being able to support their families, who were fired by Weyco Inc. because they smoked while off the job and were not able to overcome the powerful grip of their addiction to nicotine. The truth is that Senator Bernero appears to have filed this legislation not on behalf of the tobacco industry, but on behalf of the four unemployed women, who contacted him about their problem. It is this which appears to have directly motivated the filing of this legislation, not any tobacco industry motive or hidden agenda.

Senator Bernero's agenda, in fact, seems very clear. He appears to be sincerely interested in protecting the privacy of employees in his state, and to ensure that their ability to make a living and to support themselves and their families is not taken away because of lawful off-the-job behavior that has no relevance to their performance of their job duties.

This means that tobacco control practitioners are going to have to address this legislation on its merits, not on the motivations of those who introduced the bill. It is not going to be possible, or even accurate, to dismiss the bill simply on the basis of it being part of a tobacco industry hidden agenda. The apparent sincerity of the sponsor of the bill in attempting to protect employee privacy rights is going to need to be respected, and the debate is going to have to, perhaps for the first time, address the relevant issues at hand and not simply the evilness of the tobacco companies.

So what remains then is the question, which I have not yet heard answered by opponents of Senate Bill 381, of whether tobacco control advocates support the right of employers to fire workers who eat an unhealthy diet, do not get enough physical activity, or engage in other unhealthful behaviors, assuming that these behaviors are lawful, occur off-the-job and off company premises, and do not directly interfere with job performance. In other words, is there something unique about smoking that distinguishes it from other unhealthy behaviors in such a way that it is appropriate to fire people for smoking but not for those other behaviors? Or, is it the case that tobacco control advocates who oppose this legislation really feel employers should be able to fire workers for any unhealthful activity, even if it does not directly impinge upon job performance?

Why is it that we in tobacco control seem so unwilling to answer this critical question? Perhaps it is the case that in all previous situations like this, we have been able to dismiss legislation simply on the basis of it being advanced as part of a tobacco industry hidden agenda, which might have allowed us to beg the question. But that is the case no longer.


Anonymous said...

I understand that there may not be a good justification for firing someone who smokes, but what about hiring someone who smokes? Should a company who has a policy against hiring smokers be unable to keep such policies? Is it possible we will get to a point where tobacco use becomes a "pre-existing" condition thus making a new employee ineligible for the company sponsored health insurance?

Michael Siegel said...

I think yours is a very reasonable argument, and I agree that there is a major difference between hiring and firing policies. While hiring policies are clear upfront, firing policies represent a change in the conditions of employment that were not agreed to initially. So I think it may be that different considerations need to go into the discussion of hiring vs. firing policies regarding smokers. This is exactly the kind of informed discussion that I was hoping to stimulate with this post.

benpal said...

Michael Siegel, the questions remains the same: should companies be allowed to refuse hiring an employee on the grounds of being obese, homosexual (think back a few years and that could well have been a "politically valid" reason), religious believes? Are we delegating decisions on politically correct lifestyles to legislators and ultimately to company owners (non-elected individuals like you and me)?

Michael Siegel said...

I do agree with you. I was simply trying to acknowledge the anonymous commenter's distinction between hiring and firing policies. But in this case, I do not see any justification for making smoking off-the-job a condition for either hiring or firing.