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Special Report by:
Equality for All

Ed Note: Last week, Geisinger Health Systems announced that it will not hire employees who test positive for tobacco use.  So far, the company is only basing initial hiring decisions on the tobacco test and is not demoting or terminating employees for using tobacco. We are insensitive and hate the smell of smoke, so we turned to Equality for All for a civil rights perspective on the matter.

I was almost certain that hiring, firing, demoting, etc…on the basis of smoking cigarettes posed no real constitutional problem. (I am not addressing the 29 states constitutionally enshrined smokers’ protection amendments.)  Ah, but that tricky Constitution fooled me again. Turns out, the recent amendments to the Americans with Disabilities Act, commonly referred to as ADAAA (Americans with Disabilities Act Amendment Act), broadens how a court determines “disability.” With some creative pleading and a tenacious plaintiffs’ attorney, smokers may now be regarded as disabled, thus opening up all the protections of the ADA.

(I will take a brief break here while any plaintiffs’ lawyers go check and confirm that the Act provides attorneys’ fees.)

If you are lucky enough to have a job with benefits, you are painfully aware of the ever-rising employee contribution to health care. During open enrollment you probably looked into ways to reduce that contribution without randomly picking which of your kids to insure.

Well, some employers are going through the same process and they have decided that smokers are the uninsured children.  Last week, Geisinger Health System in Harrisburg, one of the State’s largest employers, announced that it will not only be looking for the usual suspects on that drug test.  It is going after the smokers.

Draconian policy? Yes. Legal? Maybe not.

The theory goes something like this: Employees can claim that anti-smoking policies violate the ADA. Addiction is a protected disability. Diseases related to or caused by smoking, such as lung cancer, asthma, and other respiratory complications are also protected disabilities. With the amendments to the ADA, an employee may claim that an adverse employment action was taken pursuant to an anti- smoking policy and the employer regards the employee as disabled (addicted, asthma, etc…).

I’m not suggesting that this argument will win the day. In fact, I think that would be an unworkable result. But take note: whatever result is reached, it will come at the cost of litigation that will likely take years to wind its way through the courts. To small and mid- sized employers, I suggest not sacking the smokers quite yet. You’ve lived with the smokers for this long; a couple of more years won’t hurt.

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