Pima County, Arizona — employer of some 3,000 workers — could be on course to refusing to hire smokers. And smoking employees may face a steep surcharge for their health coverage if they don't kick the habit.
The county, which includes Tucson and has a population of nearly 1 million, already has a strict non-smoking policy. Its county benefits plan offers smokers — about 1,000 of whom work for the county — various smoking diversion programs. Now, a county administrator wants to take the anti-smoking sentiment to the next level and include the no-hire clause in the county's employment policy.
Chuck Huckelberry sent a memo to the Pima County board of supervisors calling for the board to approve a ban on hiring smokers in order to underscore the county's commitment to providing a healthy work environment for all workers.
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"This proposal is based on years of research regarding the negative effects of tobacco and nicotine on the health of individuals, and the staggering costs to employers providing health coverage," he wrote.
According to the news portal AZ Central, job applicants would have to sign an affidavit saying that they have been tobacco- and nicotine-free for one year. They would have to agree to take a nicotine detection test to prove that they were tobacco free.
There's nothing illegal about such a policy, which various health care organizations have already adopted. Rose Law Group Employment Law attorney David Weissman said in an article in the firm's newsletter that, although 30 states make it illegal to discriminate in hiring against smokers, Arizona isn't one of those state. Further, he said, there's no federal law protecting smokers from such discrimination.
"Indeed, this is a growing trend among health care companies, including Scottsdale Healthcare and Cancer Treatment Centers of America, which have policies in place similar to Humana's," Weissman said. "That said, there may still be legal risks associated with such policies, such as a claim under the Americans With Disabilities Act Amendments Act of 2008, even in states like Arizona," Weissman said. "Accordingly, employers would be wise to consult with counsel before putting any type of no-smoker policy in place."
Huckelberry's proposal doesn't suggest that current smoking county employees be hired. But they would have to submit to nicotine testing and would be charged extra for health coverage if they continued to smoke — as much as 30 percent more than non-smokers.
The proposal hasn't yet gone to the board for consideration, but is expected to be on its October agenda.
Most Americans don't support hiring bans targeting smokers or obese job candidates. A recent Gallup survey showed that just 14 percent of those interviewed were in favor of bans on hiring smokers.
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Dan Cook
Dan Cook is a journalist and communications consultant based in Portland, OR. During his journalism career he has been a reporter and editor for a variety of media companies, including American Lawyer Media, BusinessWeek, Newhouse Newspapers, Knight-Ridder, Time Inc., and Reuters. He specializes in health care and insurance related coverage for BenefitsPRO.
