Sick, sick, sick

Is this legal?

Company Fires All Employees Who Smoke

Michigan Firm Won't Allow Smoking, Even On Employee's Own Time

LANSING, Mich. -- Four employees of a health care company have been fired for refusing to take a test to determine whether they smoke cigarettes....

Comments

[anon]

under what reasoning would it be illegal?

smokers aren't a protected class, so no equal protection problems; there are probably no state laws protecting the rights of smokers in michigan.

probably legal.

[chrisanthemama]

I am an ex-smoker of 25+ years, but it's frankly an invasion of privacy for an employer to demand testing of use of what is (after all) a LEGAL substance. What next? testing for cheeseburgers? Stupid employer.

[PSoTD]

smokers aren't a protected class

Um... smoking is legal. Unless the employees have employment contracts that specify otherwise, that should be protection enough from firing for off-hours activity. Same would hold true for drinking a beer or driving a motorcycle or having unprotected sex - each has risks, each is legal.

[doghouse riley]

Sure it's legal; Michigan is a hire-at-will state, like most states, and absent an enforcible contract, violation of constitutional rights, or discrimination by race creed or color an employer can do as he will. Fire you because he doesn't like the way you combed your hair that morning. Fire you for rooting for Ohio State. Fire you because your cousin roots for Ohio State. He pays his share of your unemployment, is all.

[Harry]

There's a narrow logic to restricting eligibility for health coverage to those unlikely to get sick. It would be smarter to expand the pool contributing to a general fund rather than let one company after another join the race to the bottom. As long as they're unwilling or unable to see that cutting people off doesn't make them go away, that's what we're going to have.

[Devil's advocate]

Perhaps their reasoning was something like this...

i. The negative effects of smoking well outweigh the positive effects.
ii. It is somewhat obvious that (i).
iii. Any person who acts in such a way [wherein obvious negative effects outweigh positive ones], especially one who does so habitually, is either weak-willed [i.e. recognizes he or she should stop & wants to stop but cannot], unintelligent [i.e. does not realize (i)], or morally apathetic [i.e. does not care about negative/harmful actions and increasing positive ones].
iv. Any person who is weak-willed, unintelligent, or morally apathetic is not fit to work for my company.

Conclusion - I should fire all smokers, because it reflects inability to do the job well due to one or more deficiencies (as described above).

Jeff

[bjr@yahoo.com]

Speaking of smokin, when are you going to put up a new pic? Your fans are looking for a smile.

[Greg Abbott]

There might be an Americans with Disabilities Act angle to challenge this -- arguing that addiction to cigarettes is a disability, and that terminating employees with this addiction violates their rights to a "reasonable accomodation" of their disability.

There have been some victories for plaintiffs in cases where alcoholics were fired - that would be the path these cases would follow (key in those cases, though, was testimony that the plaintiff was not offered a chance to get treatment for alcoholism before being terminated).

For example, using nicotine patches or gum might be a reasonable accomodation between the employee's disability and the employer's need to keep health care costs down. If such an accomodation was not offered, the ADA might kick in.

That's where I'd go if I were handling this (and, yes, I'm a lawyer - I don't play one on TV)

[~DS~]

That is quite a hard call to make. On the one hand you want private companies to be able to operate as they see fit provided they're breaking no existing laws. OTOH ... that just f***ng sucks!

[Gareth]

They need a union.

[Akatabi]

And this would be different from indentured servitude how?
It's unreasonable search and seizure in violation of the fourth and fourteenth amendments. Employers can't violate employee's constitutional rights as a condition of employment, even employees at will. I hope they sue the bastards.

[Jeff Medina]

Search and seizure? It isn't search and seizure at all. It's the cigarette equivalent of a marijuana urine analysis. The employer told the employees they had to take a test (as happens all the time with drug tests in numerous jobs) and they refused, so he/she fired them. There is no violation of the Constitution here.

[Gareth]

At a certain level, Jeff is right: it's all just freedom of contract. If you read the libertarians (check out Epstein's Forbidden Grounds for a chilling example), an employer should be able to fire you because of your looks, your record collection, your religion, your politics and your race. Only race and religion are clearly contrary to US law.

But surely that shows what an impoverished conception of liberty the "libertarians" cling to. Surely an employee who can call on a union if they get fired for ridiculous reasons is freer than one who can't. If the US Constitution doesn't protect people at work, then maybe the AFL-CIO will.

[Scott]

Regarding Jeff's post, I don't think the assumed entailment from moral apathy to bad employee holds. But otherwise, the post seems on point.

[Akatabi]

Somehow I doubt that WEYCO is a union shop. Absent reasonable suspicion or impaired performance except in public safety situations, employers can't even test current employees for illegal drugs. And no, weak-willed, unintelligent or morally apathetic employees are not the issue. Reduced health care costs (for which they present no evidence at WEYCO) are.

Forcing employees to sign a smoke-free statement and then submit precious bodily fluids without cause on pain of termination is not employment at will. It is an unconscionable contract.

[anon]

I'm going to channel Scalia now (ugh):

these fired employees need to look to the legislature, not the courts. there is no constitutional right to smoke, even if it is legal to do so; there is no law in michigan protecting the right to smoke: "there ought to be a law should be your cry", not, "let's sue the bastards."

it's been a while since i read the ADA, but my memory seems to recall that it is a violation to fire an addict in treatment, but not an addict who still uses, no?

[Jeff Medina]

Scott said, "Regarding Jeff's post, I don't think the assumed entailment from moral apathy to bad employee holds. But otherwise, the post seems on point."

A morally apathetic employee arguably would have less (or no) qualms with wasting company time, stealing office supplies, using networks to download games & pornography, and so forth. Such a drain on company resources is not guaranteed by moral apathy, I agree -- whim & personal preference will determine whether a morally apathetic employee will try to get paid for playing online poker.

But the likelihood of the employee being extremely wasteful with company time/resources is nonetheless drastically larger than it would be with an employee who was not morally apathetic.

(Also, this distinction turns on a certain sort of construal of "moral"; it could be argued that an employee who "wastes company time" to study philosophy is moral, but only because that person's morality deemed the pursuit of philosophy a morally superior goal than growing the company stock value, for example. But I assume the sense in which I intended "morally apathetic" is somewhat apparent, given the context of the argument.)

[Josh Narins]

It's funny. On Wall St one likely has to take a drug test to get any position, but the substance rules basically amount to "Don't ever show up drunk or wasted, and don't ever bring any drugs (incl. alcohol) to work"

I guess that company thinks it is more of a delicate operation than Merril Lynch or Lehman Brothers.

[Lindsay Beyerstein]

It's funny. On Wall St one likely has to take a drug test to get any position, but the substance rules basically amount to "Don't ever show up drunk or wasted, and don't ever bring any drugs (incl. alcohol) to work"

Madison Avenue doesn't even go that far.

[patrick revere]

lindsay-i came across your posting of the weyco smoking story while putting together a piece (i'm a business reporter at the holland sentinel in west michigan) on how smoke-free workplaces have saved life and improved overall health in the workforce. looking at your bio, i noticed you're a freelance pharmaceuticals writer and wondered if you would feel comfortable at some time serving as an industry expert for my own writings. holland and west michigan as a whole has the largest holding of pfizer plants and employees. the holland opereration is leaving town by the end of 2006. can you email me, please? it would be greatly appreciated. p.