Is Leisure-Time Smoking a Valid Employment Consideration?

TLDR: The evidence has mounted that the costs attributable to smoking are reflected not only in smokers' decreased longevity and increased risk of disease, but also in the workplace, and the current approaches to employment discrimination based on off-duty smoking are examined.

Abstract: I. INTRODUCTION It has been over forty years since the Surgeon General first released a report stating that cigarette smoking is a health hazard and a primary contributor to lung disease. (1) Since that report, substantial research has established that smoking dramatically increases the risk of death from a plethora of conditions. (2) Despite widespread awareness and acceptance of the risks of smoking, (3) an estimated 44.5 million adults, or 20.9% of the United States population, continue to smoke. (4) It has been estimated that cigarette smoking is now responsible for 440,000 deaths annually in the United States. (5) Another estimated 8.6 million persons in the United States suffer from serious illnesses attributable to smoking. (6) In the years since the Surgeon General's initial report, the evidence has mounted that the costs attributable to smoking are reflected not only in smokers' decreased longevity and increased risk of disease, but also in the workplace. (7) The highest prevalence of smoking in the United States occurs during peak employment years in the twenty-five to forty-four-year-old age groups. (8) Health care costs for smokers are estimated to be as much as forty percent higher than those for nonsmokers. (9) Employers of smokers suffer a substantial loss of productivity attributable to smoking. (10) In the United States, productivity costs attributable to smoking total an estimated $92 billion annually. (11) Many of the employment costs attributable to employee smokers, including increased health insurance costs and productivity losses due to absenteeism, are ultimately shared by nonsmoking employees. (12) Currently, twenty-seven states and the District of Columbia have adopted statutes which prohibit enforcement of employment policies that penalize employees and potential employees for engaging in legal activities such as smoking during non-employment periods. (13) Notwithstanding the substantial support for legislation prohibiting lifestyle discrimination, a significant number of states continue to permit discrimination based on off-duty activities. (14) In those states, an increasing number of employers have opted to enact policies precluding the employment of smokers. (15) Currently, approximately six percent of companies refuse to hire smokers. (16) In contrast to the draconian no-smoking-ever approach taken by some employers in states that tolerate lifestyle discrimination, other employers in those states have adopted a middle-of-the-road approach to leisure-time smoking by employees. Those employers, rather than proscribing employment of smokers, have attempted to pass on at least some of the additional costs attributable to smoking to employees that smoke. (17) This Article examines the current approaches to employment discrimination based on off-duty smoking. Part I examines the constitutional, statutory, and common law background giving rise to the differing views regarding employer consideration of off-duty behavior in making employment decisions. Both federal and state constitutional attacks on employment discrimination against smokers have failed. (18) Similarly, no federal statute prohibits employers from refusing to hire smokers. (19) Finally, a right to be free from employer scrutiny of employee off-duty smoking is not protected by tort law. (20) Part III of this Article examines the majority view that off-duty smoking is not a legitimate employment consideration. An employee's right to engage in leisure-time smoking without employment consequences is defended on both the basis of privacy and the connected notion that condoning discrimination against smokers constitutes a slippery-slope which will result in increased leisure-time scrutiny by employers. Part IV of this Article reviews the arguments favoring allowance of discrimination against employees who smoke. From an economic perspective, a smoking employee simply costs more than one who does not. …