Implementing a Non Smoking Policy

More and more companies seek to discourage their employees from smoking. This is usually done by imposing smoking cessation programs on the employee’s off-the-job activities. However, some companies go out of their way create a smoke-free environment by adopting policies that address employees’ off-the-job behavior.

One company in Michigan gained national attention when it gave employees an ultimatum to either quit smoking or be fired.

Another company in New Hampshire has banned all use and possession of tobacco in the work building and prohibits anyone who have used a tobacco product within the previous two hours from entering its workplace.

Another employer in California offered incentives for their employees who have ceased from smoking.

These aggressive implementations of smoking bans in the office have understandably good intentions. Companies would want to eliminate smoking in the workplace and try to manage its attendant costs.

They are also motivated by factors such as rising health care costs, pressure to increase productivity, and resentment of smokers by non-smokers in the workplace arising from perceptions that smokers take more frequent breaks, and increase the health care cost burden on non-smokers.

However, employers need to consider carefully the potential legal implications of adopting work policies targeted towards smokers, or making employment decisions based on whether an individual smokes.

Such aggressive anti-smoking implementation may lead to legal problems, such as when some disgruntled employees would find an opportunity to sue the company in violation of anti-discrimination laws.

Here are some tips that would make sure that your company is on the right track when it comes to instituting non-smoking policies at work.

Check your local anti-smoking laws – A growing number of cities and states have enacted laws that explicitly ban smoking in most workplaces. If in case local laws prohibit smoking in places where employees work, your company is given a statutory obligation to ensure a smoke-free workplace for your employees.

However, do also note that there are states laws that prohibit companies from implementing decisions towards employees solely based on their off-duty and away-from-work-premises activities such as smoking after hours of work.

Enforce the non-smoking policy uniformly – If there are no anti-smoking laws in your area, employers may choose to implement a policy that bans smoking on-the-job and on employer premises.

The policy should be carefully monitored and uniformly enforced to avoid violating federal and state anti-discrimination statutes. Ensure that the policy is not being used to target certain employees while affording leniency to others.

Investigate all complaints on smoking – Employers should not be lenient in investigating all complaints alleging violations of the no-smoking policy.

Clearly state the penalties – The consequences for violating the anti-smoking policy should delineated clearly and imposed uniformly. Inconsistent monitoring or imposition of discipline for violations could lead to a claim for "disparate treatment," which violates federal and state anti-discrimination laws.

Smokers should not be treated differently – Companies must implement any hiring or retention policy that affect smokers in a consistent manner to avoid a claim of disparate treatment in violation of federal or state anti-discrimination laws.

For instance, more and more companies impose higher health care premiums on smokers, which is not permissible in the Health Insurance Portability and Accountability Act of 1996, wherein it prohibits employers from discriminating on the basis of an employee’s health condition in determining benefit premiums or contributions.

However, the act recognizes an exception for a "bona fide wellness program." This means that you may implement higher health care premium on smoking employees if he or she does not comply with the company’s bona fide wellness program.

At the same time, if the smoker participates in the company’s smoking cessation program that meets the benefits of a bona fide wellness program, he or she is exempted from higher premiums.

However, if a smoker finds it difficult to stop smoking because of the addiction it brings, the company must provide a reasonable alternative standard like trying a nicotine patch or discounts in return for attending anti-smoking classes.

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