Is it legal to discriminate against smokers in the United States? —Tim Kapp


Smokers often ask whether new smoking regulations are legal and employers often ask what they can legally do to reduce smoking in the workplace. To best answer both questions, let’s break it down into four specific issues:

Are Smokers a “Protected Class”?

The term “Protected Class” is used in United State anti-discrimination law to describe factors which cannot be targeted for discrimination. This includes characteristics such as Race, Color, Religion, Age, Disability, and Genetic information. Currently, smokers are not considered a protected class, however certain states and localities do offer varying levels of protection related to smoking in public spaces, and hiring discrimination.

Are smoking bans legal?

The United States federal government has made no attempt to enact any nationwide federal smoking ban. That means all smoking bans or protections are created and enforced at a state and local level and subject to local criminal and occupational safety and health laws.

Currently 39 states (81.3% of the US population) are covered by 100% smoke-free laws that require “non-hospitality workplaces and/or restaurants and/or bars” to be 100% smoke-free. (http://www.no-smoke.org/pdf/mediaordlist.pdf)

For an up to date list of state and local smoking bans in your area, visit: http://en.wikipedia.org/wiki/List_of_smoking_bans_in_the_United_States

Can employers discriminate against smokers?

Many people are surprised to learn that, like smoking bans, the U.S. Federal Government has made no federal laws protecting smokers or entitling smokers to equal protections when it comes to hiring, promotions, etc. This is because the Equal Employment Opportunity Commission does not recognize smokers as a protected class.

Currently, twenty nine states offer varying state-level employment protections for smokers. To find out if your state designates smokers as a protected class, visit the “State Legislated Actions on Tobacco Issues” website provided by the American Lung Associations: http://www.lungusa2.org/slati/states.php. Also, note that once a person is hired, most states forbid firing the person for being a smoker or taking up smoking.

The case of corporate wellness plans

As the cost of employee benefits increase, employers become more concerned about how the health of their employees affects their bottom line. The Mayo Clinic estimates that a smoking employee costs $1,300 more each year than a non-smoking employee in medical expenses.

In order to lower medical costs and increase productivity, many employers implement wellness plans that either reward good health or penalize poor health. These plans may reward employees for up to 20% of the overall cost of the coverage. In 2014 that amount will jump to 30% and possibly as high as 50% for wellness plans that specifically address smoking cessation. As allowable rewards increase, smokers will feel increasing financial pressure to quit.

Is this a form of discrimination? The answer is no, as long as the wellness plan meets HIPAA non-discrimination rules. Under HIPPA rules, a simple “participatory” wellness program may require an employee to participate in a smoking cessation program (such as a smoking cessation course) once a year in order to obtain the reward, a different deductible or co-payment. However, the employer cannot require the employee to quit smoking to get the reward and must reimburse the employee for the cost of the program.

A more aggressive “Health Contingent” wellness can provide a reward for quitting; However, the plan must also provide a reasonable alternative standard (or waiver of the standard) to any individual for whom it is unreasonably difficult to quit due to medical conditions. It is important to note that both the Surgeon General and The Diagnostic and Statistical Manual of Mental Disorders state that nicotine addiction is a medical condition. Therefore, your employer is required to provide a reasonable alternative (such as a discount in return for attending educational classes or for trying a nicotine patch).

For details on HIPAA non-discrimination rules, visit this FAQ published by the U.S. Department of Labor: http://www.dol.gov/ebsa/faqs/faq_hipaa_ND.html

 

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