Don't want to hire smokers? Check the law first

A column about keeping your practice in good health

By Victoria Stagg Elliottis a longtime staff member. She covered practice management issues and wrote the "Practice Management" column from 2009 to 2013. She also covered public health and science from 2000 to 2009. Posted Dec. 14, 2009.

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The Cleveland Clinic doesn't hire smokers, under a policy implemented two years ago by CEO Toby Cosgrove, MD. Dr. Cosgrove also has said he would not employ people who were obese, if that were legal.

He told the Wall Street Journal Health Blog that when laws say you can't refuse to hire someone based on their obesity, "We are protecting people who are overweight rather than giving people a social stigma." He reiterated that statement to numerous media outlets.

In response to the controversy his statements generated, including criticism at the Cleveland Clinic's own obesity summit in September, Dr. Cosgrove has since apologized for any insensitivity. He said the comment on hiring obese people was made to raise awareness of the associated health care costs. The action on smokers was taken as part the medical center's wellness program for employees.

"The Cleveland Clinic is committed to promoting wellness for its employees and the public at large," said Eileen Sheil, executive director of the organization's corporate communications office.

Employment law experts say, however, that medical practices need to tread very carefully with such issues, and not just because of potential public backlash. Policies related to hiring and firing smokers, the obese or anyone else based on health issues can fall under "lifestyle discrimination."

"Before you make these decisions, you want to check out all the local and state laws," said Linda Georgiadis, a partner at the law firm LeClairRyan in Richmond, Va. She has counseled practices on this issue. While practices in some cases might be protected if they fire or don't hire smokers, laws prevent hiring or firing based on obesity in nearly every case.

Smokers' protections vary. In Ohio, for example, it is legal for companies to refuse to hire tobacco users. However, some states and municipalities prohibit discrimination against those who smoke outside of work hours. Other areas of the country have less specific ordinances that prohibit discrimination on the basis of legal activities outside of company time, which would cover not only health issues but also activities such as political involvement.

"There are a number of these laws across the country," said Brian J. Clark, a partner with the employment and labor law firm Clifton Budd & DeMaria in New York, who works with numerous health facilities.

Experts also caution that even if it is legal in your jurisdiction not to hire smokers, employment policies must be worded very specifically. For example, your practice might have to define what a smoker is, because those who occasionally use tobacco may not self-identify as such. Experts suggest job applications ask about frequency and amount of tobacco use.

Testing for evidence of tobacco use can also come into play. For example, the Cleveland Clinic tests for a nicotine by-product during the physical exam required after a job offer has been made. Job offers are rescinded if the test is positive. Smoking cessation services are offered and applicants are allowed to reapply after 90 days. Such testing is most likely not legal or practical before an offer is made, attorneys say.

Even if local laws prohibit basing hiring decisions on whether an individual smokes, practices can impose restrictions during work time. For example, employers do not have to grant extra breaks for smokers.

"None of the states say that companies have to provide smoking breaks, and there is nothing under any of the state labor laws that say you actually have to allow smokers to smoke," said Fiona Gathright, president of Wellness Corporate Solutions in Cabin John, Md.

Nor are employers required to provide a place where smoking is allowed. The Cleveland Clinic has a smoke-free campus, and many jurisdictions now have laws prohibiting smoking in the workplace.

Obesity, however, is a separate issue and experts say it is highly unlikely that refusing to hire obese people is legal in any jurisdiction. Smoking or nicotine addiction has not fallen under the purview of the Americans with Disabilities Act. But discrimination against those who are morbidly obese is covered. Lower levels of excess weight are not covered.

Weight restrictions in hiring also could conflict with federal laws prohibiting sex discrimination, as well as with any local ordinances that include appearance.

"In some states, you cannot discriminate based on someone's appearance. Those who are overweight could be protected under that," said Nancy Sasser, an associate attorney with LeClairRyan.

Some companies have started charging employees who smoke or who are overweight more for health insurance coverage.

Victoria Stagg Elliott is a longtime staff member. She covered practice management issues and wrote the "Practice Management" column from 2009 to 2013. She also covered public health and science from 2000 to 2009.

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