Starting on November 1, Akron Children's Hospital will rescind its offer of employment to any individual who tests positive for nicotine in a required pre-employment health screening.
According to a press release announcing the new policy: "In an effort to further its mission of promoting a healthy environment and lifestyle, Akron Children’s Hospital is joining the ranks of about 6,000 other companies nationwide and establishing a new nicotine-free hiring policy. The policy, which will be implemented incrementally beginning Aug. 1, will add a nicotine test to the hospital’s existing health and wellness screenings for new hires."
"'As a trusted leader in pediatric healthcare, Akron Children’s Hospital is dedicated to establishing wellness initiatives that support our mission to promote a healthy environment and lifestyle,' said Walt Schwoeble, vice president of Human Resources at Akron Children’s. ... 'By instituting a nicotine-free hiring policy, we can further support our wellness mission and model the healthy behavior we promote,' he said."
"Between Aug. 1 and Oct. 31, job applicants who are newly hired at Akron Children’s will be tested for nicotine as part of the pre-employment panel of medical tests performed by employee health nurses. Applicants who test positive for nicotine will be encouraged to take advantage of the free smoking cessation services already available to existing employees. Beginning Nov. 1, however, applicants who test positive for nicotine will have their offer of employment rescinded and be given information about smoking cessation. They may reapply for employment after 90 days."
The Rest of the Story
If the policy is what the press release says it is, then not only will Akron Children's Hospital no longer hire smokers and smokeless tobacco users, but it will no longer hire anyone who lives with a smoker, or anyone who is significantly exposed to secondhand smoke. After all, it is not just smokers and smokeless tobacco users who test positive for nicotine. Anyone with significant secondhand smoke exposure will also test positive. The Akron Children's Hospital will be severely limiting its pool of potential employees if it actually implements this policy as stated.
More likely, the actual policy sets a cut-off to differentiate active and passive smoking. But this highlights a key flaw in the reasoning behind the policy. If the point is to promote health and wellness, then both active and passive smokers should be targets of the employment discrimination. After all, by some reports passive smoking is just as hazardous as active smoking and we know that there is a substantial heart attack risk for individuals who are exposed to more than 30 minutes of secondhand smoke.
The policy is also flawed because it fails to rescind the employment offer of those individuals who are significantly overweight, those who do not get regular exercise, and those who eat high-fat diets.
Other problems abound. Suppose an individual is using smokeless tobacco products in order to quit smoking cigarettes. Shouldn't that be encouraged, rather than disallowed? What if a smoker desires to quit smoking and has been trying really hard? Isn't that a behavior to be encouraged?
Is all of this really worth decreasing the pool of applicants by at least 20%? Especially when there is a nursing shortage and very good nurses are hard to find?
This is blatant employment discrimination. By definition, the policy will result in the denial of employment to the best qualified candidates for the job. In fact, the best qualified candidates will have already been hired, and many of them will have their offers rescinded solely because they smoke or use smokeless tobacco.
The requirement of an invasive test for nicotine after the offer of employment has been made seems to me to be a undue invasion of employee privacy. It will be interesting to see what will happen if this policy is challenged under Ohio privacy protection law.
In Ohio, employers who are refused employment have a successful claim of invasion of privacy against the employer if in denying employment, the employer "wrongfully intrudes" into the "private activities" of the employee.
What is wrongful intrusion into private activities? The Ohio Supreme Court has defined this as follows: "One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person."
Would obtaining a body fluid sample for the sole purpose of determining the lawful behavior that a person is engaging in during their off-work hours in the privacy of their own homes and which does not directly affect their qualifications for employment be highly offensive to a reasonable person?
I should think so.
Hopefully, some day we'll find out whether the Ohio Supreme Court agrees.
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