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.