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Smokers need not apply

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Smokers need not apply
Warning: Cigarette smoking may be hazardous to your career.

By Brenda J. Buote
Globe Correspondent / December 19, 2010

Under a new policy believed to be the first of its kind for a hospital in Massachusetts, Anna Jaques Hospital in Newburyport last month began testing prospective employees for nicotine use. Those who fail the screening can forget about a job. The rejected candidates are told to reapply in six months — if they’ve quit puffing by then. “As a health care facility, we believe it’s our right to say we don’t want any smoke in our building or on our employees," said Deb Chiaravalloti, spokeswoman for Anna Jaques. “We are taking a stand, saying that if you smoke you cannot work here because we are promoting good health. We want to have as healthy an environment as we can for our employees and patients."

The hospital’s new hiring policy is part of a national trend as a growing number of private companies, citing concerns about the health and productivity of their employees as well as spiraling health insurance costs, strive to influence workers’ personal habits.

Nationwide, roughly 63 percent of companies now offer a cash bonus to employees who complete a health risk questionnaire, up from 35 percent in 2009, and more than half offer incentives for employee participation in health improvement programs, according to a national survey by the consulting firm Hewitt Associates.

At Anna Jaques, employees who voluntarily take and pass four health screenings — for blood pressure, cholesterol, body mass index, and nicotine — receive a $500 deposit to their health saver account each year they pass the tests; about 47 percent of the hospital’s 1,000-person workforce participates in the program.

As premiums for employer-sponsored health insurance balloon — swelling 8 percent this year after a 7 percent jump in 2009, according to a national survey conducted by Hewitt Associates in partnership with the Business Roundtable, an association of CEOs of leading US businesses — companies are trying to influence workers’ behavior with financial incentives and penalties. Often, such initiatives target smokers, in part because of the high cost of treating smoking-related illnesses. A 2006 study by the Massachusetts Department of Public Health found that smoking deals a $6 billion blow to the Commonwealth’s economy each year in health care costs and lost productivity.

Faced with such sobering statistics, a growing number of companies are imposing higher premiums for smokers or offering incentives for kicking the nicotine habit, according to Susan K. Lessack, a labor and employment law attorney with Pepper Hamilton. Other employers, including Anna Jaques, are going a step farther and eliminating smoke — and sometimes smokers — from the workplace altogether.

Lessack noted two well-publicized examples. Weyco Inc., a Michigan-based medical benefits administrator, grabbed national headlines in 2005 when it issued an ultimatum to the smokers on its payroll: Quit smoking or be fired. And in Wilton, N.H., Kimball Physics, a manufacturer of scientific instruments, gained note in the early 1990s when workers there adopted a ban on the use and possession of tobacco in company buildings and vehicles parked on company premises. The policy goes so far as to ban “tobacco-residuals emitting persons," defined as anyone who has used a tobacco product within the last two hours, from entering a Kimball Physics building.

Here in Massachusetts, the Scotts Co. found itself under a national spotlight in 2006 when Scott Rodrigues, a Bourne smoker, sued the Ohio-based lawn care firm for dismissing him after a drug test found nicotine in his urine, a violation of a company policy forbidding employees from smoking on or off the job. A federal judge dismissed Rodrigues’s lawsuit last year. The case sent a clear signal to Bay State employers: Smokers can be filtered out.

Machusetts Hospital Association announced that as of Jan. 1, the organization will no longer hire smokers for its 45-person workforce. Association president Lynn Nicholas said the initiative builds on the organization’s existing policy of having a workplace free of tobacco.

“MHA is proud to take this groundbreaking step to promote public health," Nicholas said in a prepared statement. She noted that in Massachusetts, smoking is the leading cause of preventable death and disease; more than 8,000 residents die each year from tobacco-related causes. “We hope more hospitals, health systems. and businesses throughout Massachusetts follow our course."

Critics say such hiring policies are too intrusive and could be a slippery slope. If employers screen out smokers, who else might they seek to ban from their workplaces in the future? The morbidly obese? People who engage in perilous hobbies, like hang gliding or scuba diving?

“There is little you do in your private life that does not impact your health. That includes just about everything, right down to your sex life,’’ said Lewis L. Maltby, president of the National Workrights Institute, a spinoff of the American Civil Liberties Union that strives to ensure employees’ rights. “So once you say it’s OK for your boss to meddle in those areas of your private life that affect your health care costs, you might as well kiss your private life goodbye."

According to the ACLU, at least 6,000 American companies attempt to regulate off-duty smoking and other private behaviors. The ACLU characterizes a company’s refusal to hire smokers as “lifestyle discrimination."

Thirty states and the District of Columbia have enacted lifestyle anti-discrimination laws that prohibit employers from refusing to hire workers for engaging in legal activities while off-duty and away from the employer’s premises. This includes smoking, drinking, and overeating.

Massachusetts has no such lifestyle statute on the books, according to Barbara Green, spokeswoman for the Massachusetts Commission Against Discrimination. “Smokers are not considered a protected class," she said. “They are not covered by [civil rights] laws that protect people from discrimination on the basis of religion, race, ethnicity, age, gender or disability."

Still, legal experts say companies that choose to implement policies banning smokers should tread carefully. Such policies may inadvertently discriminate against certain classes of people. Studies have shown that young women and people of color smoke in disproportionately high numbers. By refusing to hire smokers, employers may unfairly target otherwise protected classes of people.

“Regardless of the motivation, employers need to carefully consider the possible legal implications of adopting policies that target smokers," said Lessack, the labor and employment law attorney.

So far, no one has challenged Anna Jaques’s new hiring policy, which took effect Nov. 18. The policy was implemented in year two of a three-year no-smoking plan championed by the hospital’s board of trustees. Last year, Anna Jaques banned employees from smoking on campus, inspiring a dozen people to successfully complete a smoking cessation program offered by the hospital. Next year, the smoking ban will be expanded to include visitors.

“There is nothing illegal about our decision to implement a nonsmoking hiring policy," said Stephen F. Salvo, vice president of human resources at Anna Jaques. “There are those who may disagree with our decision, but many others who are very supportive of it. The hospital will not implement any policy that illegally discriminates against an individual or protected class."

Brenda J. Buote can be reached at
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