Friday, April 15, 2005

Michigan Senator Introduces Bill that Would Prohibit Firing of Smokers

Michigan State Senator Verg Bernero introduced a bill Wednesday that would make it illegal for an employer to refuse to hire or to fire an employee based on any lawful, off-the-job activity that takes place off company property. The legislation, if enacted, would invalidate the recently instituted policy of Okemos-based Weyco Inc., which allows employees to be fired for smoking, even if off-hours and off company premises (see previous post). According to yesterday's article in the Detroit Free Press, the bill is endorsed by the ACLU, which believes the bill will help protect workers' privacy rights. The bill (Senate Bill 381) is titled "The Employee Privacy Protection Act."

The bill states that an employer "shall not fail or refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because the employee engages in, or is regarded as engaging in, a lawful activity that is both off the employer's premises and during nonwork hours." However, the bill does provide exceptions for "an activity that directly impairs an established bona fide occupational requirement or an employment activity or responsibility of a particular employee or a particular group of an employer's employees" and for "an activity that creates a substantial conflict of interest with the core mission of the employer or violates a written bona fide conflict of interest policy that has been disseminated to employees."

The Rest of the Story

While I am certainly a strong supporter of smoke-free workplace policies, I do find it to be an invasion of worker privacy to make hiring and firing decisions on the basis of smoking that takes place off-the-job and off the workplace premises. As I explained earlier, these policies regarding smoking raise the question of what other life decisions employers will try to control next. Will they start refusing to hire, or firing workers who are overweight, eat a lot of fast food, or fail to get enough physical activity? For this reason, I support Senator Bernero's legislation and hope that tobacco control practitioners in Michigan will not oppose it.

It should first be noted that this legislation is not similar to legislation in a number of states that disallow discrimination specifically on the basis of smoking. Smoking, as a potentially modifiable behavior, is not considered in this bill to be similar to factors such as race, sex, or sexual orientation. Second, it is important to note that the bill does not even mention smoking. It is not specific to smoking, but applies equally to all lawful, off-the-job activities.

I think this legislation is going to force tobacco control practitioners to confront the important question of whether their position on this issue is consistent with overall principles of public health practice, rather than merely with the goal of reducing smoking. If the only consideration of tobacco control practice is the extent to which a measure may reduce smoking, then there is justification for opposing Senate Bill 381. But if tobacco control is viewed as a part of the larger practice of public health (which it should be), then the goal of reducing smoking must also be weighed against the degree to which a policy may interfere with individual rights, freedom, and privacy, which are also (or at least should be) highly regarded public health values.

The reason why I think this issue is going to force our hand is that if tobacco control advocates are going to oppose this legislation, then they now must articulate whether they narrowly support hiring and firing decisions based on smoking, or whether they broadly support the consideration of lawful off-the-job activities as fair grounds for employment decisions.

So we will now find out whether tobacco control practitioners who support the right of employers to fire workers who smoke also support the right of those employers to fire workers who eat too much saturated fat, don't get any physical activity, or fail to protect themselves from the sun's ultraviolet radiation.

If practitioners support the right of employers to consider all of these health-related behaviors in employment decisions, then I think they are simply off-base, and do not appreciate the importance of workers' privacy and autonomy in their personal lives. But if practitioners support the right of employers only to consider one personal off-the-job behavior -- smoking -- as a factor in employment decisions, then they are in a bind because they either are revealing that they are not considering this issue from an appropriately broad public health perspective, or they will need to explain exactly why smoking should be considered uniquely.

It is not clear to me why smoking represents a behavior that should uniquely be considered in employment decisions. While it is certainly one of the most important risk factors for chronic disease, other health-related behaviors, such as diet and physical activity, are also major risk factors for chronic disease. And there does not seem to be anything about off-the-job smoking that affects an employee's ability to perform on the job or her costs to the company, outside of the increased morbidity and health costs associated with disease. But these are also sequelae of other health-related behaviors.

If anything, it seems to me that tobacco control practitioners should be sensitive to the powerfully addictive nature of nicotine and should understand and acknowledge that quitting smoking is an incredibly difficult thing to do. How can we, on the one hand, argue that smokers deserve compensation for smoking-related injuries in lawsuits because they were addicted to nicotine and couldn't quit, and then on the other hand, expect that anyone who really wants to keep their job should be expected to overcome this addiction that is every bit as powerful as addiction to heroin, cocaine, or alcohol?

It will be interesting to see what position tobacco control practitioners take on this legislation. I hope that they will think carefully before any decision to oppose the bill, however, because that would, in my view, be a position that is inconsistent both with the principles of public health practice and with the paradigm with which we view smoking in other contexts.


Bill Godshall said...

To: Mike Siegel
From: Bill Godshall

As one who volunteered hundreds of hours researching, exposing, mobilizing and defeating so-called smokers' rights legislation in many states more than a decade ago, I'm dissappointed that you've endorsed SB 381 in MI, which is virtually identical to the other cigarette industry sponsored bills.

Each employer bases its hiring, firing and other personnel decisions on hundreds of different criteria that they think will best benefit the future of their business, organization or agency.

Existing workforce anti discrimination laws justifiably protect people from race, creed, color, sex, age and disability discrimination.

Extending workforce protections to the two deadliest drug addictions (cigarettes and alcohol) benefits nobody except the cigarette and alcohol industries.

Except for collective bargaining agreements, nearly every employer/employee contract differs, based upon many diverse perceived needs and desires of the employers, employees and job applicants.

Its quite paternalistic for any third party to claim that they can determine (let alone impose upon employers) the appropriate job qualifications for every job at every workplace.

In contrast to the "off-the-job
legal activity" rhetoric by the cigarette industry (and now by you), addictions to cigarettes, alcohol and other drugs don't simply disappear when an addicted employee arrives at work every day.

Many mental and physical damages caused by alcohol and cigarette addictions go to work along with the affected employee, while withdrawal symptoms exacerbate on-the-job, which can create anxiety, irritability and other physical impairments.

Many studies have confirmed that alcohol and cigarette addictions by employees impose huge costs (e.g. absenteeism, loss of productivity, healthcare insurance), which SB 381 would further increase.

Over the past few decades, many employers have found that drug free workforce policies for certain substances have proven cost effective.

Drugfree workforce policy advocates claim that these policies have collectively reduced the overall use of (and resulting addictions to) different drugs in America.

By granting unwarranted legal protections to alcohol and cigarette addictions, SB 381 not only harms employers, but also harms the alcoholics and smokers
by prolonging their addictions.

By protecting harmful and deadly drug addictions, SB 381 would unfairly and irresponsibly impose upon most employers many of the liabilities and costs of the drug addictions (that can harm not only users, but employers, coworkers and the public as well).

SB 381 could also create lots of frivolous litigation by disgruntled employees and job applicants against employers, as any alcoholic or smoker who is dismissed from (or who isn't hired for) a job could sue by claiming that it was their "lawful activity off-the-job" that caused them to be terminated or not be hired.

Besides protecting and promoting alcohism and cigarette smoking, SB 381 would also protect other high risk activities (if done off-the-job) that also impose costs upon employers and the rest of society.

I urge Michigan public health advocates to collaborate with NFIB, Chambers of Commerce, other employer associations and probably the MI Republican House and Senate caucuses in exposing and opposing SB 381.

Michael Siegel said...

I appreciate your comments on this issue, but don't go overboard. The bill does NOT preclude employers from firing employees for activities that impair their job performance. Alcoholism is absolutely not protected by this legislation. The bill specifically states that an employer may consider as a condition for employment any "activity that directly impairs an established bona fide occupational requirement or an employment activity or responsibility of a particular employee or a particular group of an employer's employees." Thus, an alcoholic would not be protected by this bill, nor would, for that matter, a cigarette smoker who was unable to perform the duties of his job because of the anxiety, irritability, and other physical impairments that you mention.

Michael Siegel said...

Do I take it from your comment that you are suggesting that employers should be able to fire workers because of anxiety, irritability, or physical impairments?

anonymous auntie said...

Yowza! Good point!

Leonard Glantz said...

Bill Goodshall response to the posting exemplifies a troubling trend in the tobacco control movement – that trend is a zeal that disregards all social goods and values other than tobacco control.

While Mike Siegel refers to a tension between tobacco control and a “broader public health perspective” I feel this is too narrow an approach. The tension is between tobacco control and other important societal values that have nothing to do with public health. Those values involve social goods such as freedom, liberty and privacy which are so readily disregarded by smoking control and other substance control advocates.

It is remarkable that Goodshall could think of it as “paternalistic” for a legislature to regulate an employer’s hiring and firing practices. Is Goodshall against minimum wage laws because they tell an employer how much it must pay employees? All laws that regulate the behavior of employers in regard to pay, unionization, hiring , firing and so forth recognize two realities: people must work and employers have starkly more power than employees. Fair labor laws are designed to protect employees from the over reaching of employers. And that is exactly what the Michigan proposed law does. It is simply none of an employer’s business what an employee does when s/he is away from work.

If Goodshall is opposed to paternalistic actions he should oppose an employer’s paternalistic coercion of his workers to live as the employer thinks is right and good. But Goodshall is a paternalistic himself. He says that a law that would protect smokers’ and drinkers’ jobs “harms the alcoholics and smokers by prolonging their addiction.” His notion of smokers and drinkers as enslaved addicts is a ludicrous caricature of reality. Of course, if they were so enslaved so that they could not stop their behaviors Goodshall would be on favor of making this entire group of people unemployable. At the very least, Goodshall is in favor of threatening the livelihood of smoker’s in order to save them – even if they do not want saving. This is the definition of paternalism.

Mike Siegel also notes that the Michigan proposal does not mention smoking although there are other states that do have smoking-specific laws. I assume that there are smoker-specific laws because employers do not fire or refuse to hire employees as a result of other off-the-job activities. Tobacco control advocates should consider how we reached the point where smokers (not smoking) have been so stigmatized that employers attempt to treat them so poorly. And they should also ask themselves why they care so little about smokers that depriving smokers of their livelihoods seems like a decent and moral thing to do.