You Mean They Can Legally Not Hire Me Because I Smoke?

Randi Klein Hyatt
Randi Klein Hyatt
07/15/2014

In Maryland, and in approximately twenty states, the answer is “yes.” In an unusual (though modern) move, the Anne Arundel Medical Center (the “Hospital”) recently announced that starting in July 2015 it plans on no longer hiring smokers.

Like a growing number of health systems, universities and other businesses, the Hospital will require a urine test for nicotine use for all job applicants. The policy will not affect existing employees, will apply to all new hires (from custodians to surgeons), and continues the Hospital’s existing ban on tobacco use that was expanded this month to apply at all buildings and surrounding public sidewalks, parking lots, and garages. The policy not only covers cigarettes, but cigars, pipes, chewing tobacco, and e-cigarettes as well.

Federal law does not provide discrimination protection to tobacco users. While approximately two dozen states provide such legal protection (e.g., The District of Columbia and Virginia), Maryland does not. The Cleveland Clinic in Cleveland, Ohio has required all new employees to be tobacco free since 2007. Other health systems in Pennsylvania and Texas have done the same. Likewise, Scotts Miracle-Gro and Alaska Airlines are among the list of large employers that require their employees to be tobacco free. Thus, with no Maryland-specific law in place, the Hospital is completely within its rights to implement the new policy.

With 4,000+ employees, the Hospital’s move is not surprising given rising healthcare costs, the fact that it is a hospital, and that cigarette smoking, which causes more than 480,000 deaths a year nationwide, is the nation’s leading preventable cause of death. The Hospital’s primary mission is “living healthier together,” it wants to have a healthy workforce and a healthier environment for its patients, and hopes that health care costs will decrease over the long term as a result of the policy. Of course, there are always detractors.

There are those who believe that the Hospital’s new policy denies a person their livelihood due to the fact that he/she uses a legal product. One such detractor is George Koodray, assistant U.S. director of the Citizens Freedom Alliance, a private organization that advocates for smokers. Others simply believe that it is a freedom of choice issue that employers should not be involved in, especially given the stress level of many hospital employees. This leads to the slippery slope argument, “Where will it end?”

The slippery slope argument raises some legitimate concerns. What about obese people or people with allergies or high cholesterol for example? Will employers enact policies prohibiting the hiring of such people due to healthcare costs, etc.? With states now legalizing marijuana and/or decriminalizing it (like Maryland), and increasing healthcare costs, this type of issue may come up more often.

Maryland may ultimately enact legislation in response to the Hospital’s policy, similar to other states that protect tobacco users. Such legislation is unlikely, however, given the State’s 2007 ban on smoking in bars and restaurants, and the growing trend of anti-tobacco use among Maryland residents. Until that time, newly hired employees at the Hospital and/or at other businesses implementing a similar policy will just have to “quit” tobacco use until after being hired, because the policy only applies at the hiring stage of employment.

 

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