One of Colorado’s largest health care systems, Centura Health, joined a national trend Thursday by announcing it won’t hire tobacco users after Dec. 31, yet questions remain about discriminating against employees to create healthier workplaces.
Growing numbers of U.S. companies, especially hospitals, are refusing to hire smokers, and many more are considering bans, say experts in workplace legal issues.
Some justify the ban because smoking is the leading cause of preventable death, illness and disability in the United States, responsible for 443,000 premature deaths each year, according to the Centers for Disease Control and Prevention.
Yet privacy-rights advocates, including the American Civil Liberties Union, are uneasy with employers dictating employees’ choices away from the workplace if they don’t affect job performance. And singling out smokers raises the question about what other unhealthy personal choices and traits employers might try to regulate — weight, cholesterol, blood glucose levels, vegetarianism, exercise regimes?
“Employers can be legitimately concerned with workplace performance, but what people do in the hours off the job that doesn’t affect work performance ought not to be the concern of employers,” said ACLU of Colorado legal director Mark Silverstein.
The CDC estimates that smokers cost employers about $193 billion each year in increased health care costs and lost productivity.
“Cost is a big motivator,” said Florida-based health care law expert Michael Smith with The Health Law Firm. “But a hospital is also in the business of marketing a healthy lifestyle. Some of this is PR as much as anything.”
Centura officials called refusing to hire smokers an “enhancement” of its 2012 policy prohibiting smoking and use of any tobacco products at its 15 hospitals and other medical facilities in Colorado and western Kansas. The new policy does not apply to its current 17,100 employees and associates.
“We wholeheartedly believe this is the right thing to do for our organization,” said Wendi Dammann, Centura’s vice president of communications. “As the region’s leading health care system committed to improving the health of those we serve, it is important that we first serve as a role model for our communities by promoting the benefits of health and wellness.”
Applicants for any positions at Centura on and after Jan. 1 will be tested for tobacco use as part of a post-job-offer screening. Centura job applicants who test positive will be eliminated from consideration.
The no-tobacco ban includes nicotine patches, gums and other products, but a job seeker with a verifiable prescription for nicotine-replacement therapy can move forward with an application, Dammann said.
The federal government doesn’t recognize smokers as a protected class in terms of workplace discrimination, but
29 states and the District of Columbia have drafted laws to protect smokers. Colorado is one of them.
University of Colorado Law School professor Melissa R. Hart, an expert in employee discrimination, notes that the Colorado statute says it’s unlawful to discharge an employee for smoking or “for engaging in any lawful activity off the premises of the employer.” But it says nothing about discrimination at hiring.
“Employers screen for a variety of things,” Hart said. “The Colorado statute is trying to strike a balance. We don’t want employers to reach into people’s private lives, but we balance that with employers’ right to shape their workforce.”
The Colorado law is one of the broadest in the country in terms of protecting employees’ private lives, said professor Rachel Arnow-Richman, a workplace expert at the University of Denver’s Sturm College of Law. But it is silent on hiring policy.
“My guess is that Centura is taking a calculated risk,” Arnow-Richman said. “Between that and public opinion, they probably are anticipating things will go their way.”
But it could be challenged, she said.
Silverstein said the Colorado law is a good start, but incomplete.
“How is it legitimate for a person to have protection from termination for smoking but not from discrimination at hiring?” Silverstein said.
Electa Draper: 303-954-1276, edraper@denverpost.com or twitter.com/electadraper
