Massachusetts Hospital Association Bans Hiring of Tobacco Users

In the Press · February 17, 2011

Last month, the Massachusetts Hospital
Association (MHA) started requiring all new hires to comply with a no smoking
policy, which bars the use of tobacco products by employees even when they are
off duty. MHA is the trade group that represents more than 100 Massachusetts hospitals.

In a blog posting on the MHA website, MHA President and CEO Lynn Nicholas
explained that the MHA took this "groundbreaking step" to
"protect the health of our workers." She noted that smoking is the
leading cause of preventable death and disease in Massachusetts
and that more than 8,000 Massachusetts
residents die annually from tobacco-related causes.

Massachusetts
police and fire departments stopped hiring smokers in 1988. Alaska Airlines,
Union Pacific Railroad, the Cleveland Clinic, an Ohio based medical center, and
Memorial Hospital in Chattanooga, Tennessee are a few of the private employers
nationwide that have been reported not to hire smokers.

MHA’s new policy has generated vigorous debate. As reflected in blog postings
to the MHA website, critics are concerned about MHA policing the off-duty
lawful conduct of its employees and the possibility that this type of policy
could lead to further encroachment on employees’ private lives.

Can an employer, for example, refuse to hire a prospective employee because of
an unhealthy diet? Because the person drinks alcohol? Does not practice safe
sex? Sky dives? Rides a bicycle without a helmet? Based on these types of
concerns, the American Civil Liberties Union characterizes bans on hiring
smokers as "lifestyle discrimination" and as an "attack" on
the privacy rights of employees. Proponents of MHA’s policy, in contrast, have
applauded the MHA’s initiative for promoting a healthier and more productive
workforce.

Is it Legal? 

Most jurisdictions across the country have, to
some extent, instituted restrictions on smoking, such as banning smoking in
public places or in restaurants. The MHA ban, however, resurrects the perennial
question: just how far can a private employer go to control the off-duty
activities of its employees?

In most states, a prohibition against hiring smokers would not be lawful. Some
states bar such policies explicitly, protecting the off-duty use of tobacco
products. Other states more generally bar employers from limiting their
employees’ use of lawful products during non-working time. A few states go even
further and bar employers from restricting any lawful activities of their
employees during non-working hours. Overall, approximately 30 states have some
form of express statutory protection for the off-duty conduct of employees.

Massachusetts
does not currently have such a law. That does not mean, however, that Massachusetts employers
can adopt policies like the one adopted by the MHA without legal ramifications.
Most challenges elsewhere have, predictably, been on the grounds of
discrimination and invasion of privacy.

Discrimination

Smoking or addiction to nicotine has generally
been found by courts to fall outside the protections of the Americans with
Disabilities Act (ADA) or analogous state laws. It is unclear whether
amendments to the ADA,
which expanded the definition of "disability," will make nicotine
addiction a covered disability within the meaning of the statute. However,
whether or not nicotine addiction itself is covered under the ADA,
physical impairments resulting from smoking, such as lung cancer or emphysema,
would generally be considered disabilities under the ADA.

Accordingly, an employer who refuses to hire an individual because of the
possibility that the individual might develop a condition such as lung cancer
or emphysema could run afoul of statutes that prohibit disability
discrimination. It is also possible for an employee to assert a claim if a
policy against hiring smokers has a disparate impact on members of a protected
class.

Invasion of Privacy

There has been at least one challenge under
the Massachusetts Privacy Act to an employer’s policy barring off-duty smoking.
In that case, an employee took and failed a urine test for nicotine and was
terminated shortly after his hire. A federal district court in Massachusetts allowed
the employee’s claim for violation of the Massachusetts Privacy Act to survive
a motion to dismiss, finding that the employee’s stated privacy interest could
potentially outweigh the employer’s interest in a healthy workforce with high
productivity and low health care costs.

The court later dismissed the claim, finding that the employee never kept his
smoking secret and, as a result, had no "protected privacy interest."Rodrigues v. EG Systems, Inc.,
639 F.Supp.2d 131 (D. Mass.
2009). The court also held that the employer did not violate the employee’s
right to benefits under the Employment Retirement Income Security Act, because
he had not worked at the company long enough to qualify for benefits or to be a
"plan participant." The court’s rulings were based on the specific
facts of that case; a different set of facts could lead to a different result.

Conclusion

To
date, there have been no successful legal challenges by employees who were not
hired solely because they smoked. That fact certainly does not mean that the
challenges will stop – in fact, they are bound to increase if more employers implement such policies.
Although Massachusetts
provides no express protection for the lawful off-duty conduct of employees,
employers who are thinking of adopting such policies should seek legal guidance
before acting. 

For more information about implementing hiring
policies, or for any employment law matter, please contact Joseph L. Edwards,
the author of this Alert at 617 456 8131.