An increasing number of healthcare systems and hospitals across the country have announced that they will no longer hire smokers or individuals who use other nicotine products. Candidates who apply at these organizations will now be subject to nicotine screenings in addition to standard drug tests. This trend has been the source of much debate, as employers and workers’ rights associations are debating the benefits and legality of these new mandates.
“Healthcare executives believe that non-smoking mandates set a positive example for patients.”
Healthcare systems ban smokers
Pre-employment nicotine screenings have been used by hospitals and other medical providers for a number of years, but they are slowing gaining more traction and attention in the industry. Organizations like SSM Health Care, a system in the Midwest that employs more than 30,000 individuals, have forbidden nicotine use by employees since 2011. In addition to the ban, SSM requires employees to get yearly flu shots. Executives of the healthcare system believe that these mandates set a positive example for the people they serve and help to promote a healthier lifestyle.
“As a healthcare provider, we need to take a leadership role on these major public health issues,” Sister Mary Jean Ryan, CEO of SSM Health Care, said in a statement. “Not hiring tobacco users is a first step toward creating a healthier workforce, and mandatory flu vaccinations will help protect our patients, our colleagues and their families.”
Many companies across the country are joining in on this movement, including the University of Missouri Health Care system, Baylor Health Care system, Centura Health facilities and more. In addition to promoting overall well-being among employees and setting a positive example for patients, these organizations are also seeing financial benefits. According to the U.S. Centers for Disease Control and Prevention, cigarette smoking costs employers more than $190 billion every year in healthcare expenses and lost productivity. It is estimated that employees who smoke cost their employers around $1,400 more in healthcare costs than nonsmoking peers.
The decision to ban smokers from the workplace seems like a solid decision from the standpoint of executives, but many potential employees have complaints about these policies. Many states have “smoke protection” laws, making nicotine screening a complex issue for businesses.
There are a number of legal considerations for employers to take into account before implementing a tobacco screening policy.Legal issues with tobacco screening
According to the American Lung Association, there are presently 29 states that have legislation designating smokers as a protected class of workers. In these jurisdictions, nicotine users cannot be discriminated against when it comes to job applications. However, these are not the only legal problems that businesses can face when barring smokers. Applicants can also argue that their rights to privacy are violated by nicotine screenings or seek protection under the Americans with Disabilities Act and its amendments.
“The issue of nicotine testing is complicated not only by the presence of smokers’ rights laws and lifestyle statutes in certain states, which prohibit employer interference in off-duty conduct, but also by questions regarding disability and privacy,” Julie Ross, attorney at Lynn Ross Smith & Gannaway, explained in a webinar, according to Human Resource Executive Online.
Even in jurisdictions without smoker protection laws, job candidates can argue that nicotine screening is a medical exam that predicts tobacco-related conditions, such as cancer or heart disease. These applicants then have the basis to claim their rights under the ADA were violated if adverse action is taken against them.
One option for employers who want to screen for tobacco use is non-invasive saliva tests that solely detect exposure to nicotine. Human Resource Executive Online explained that these types of screenings do not need to be administered by a healthcare professional and are less likely to be viewed as medical exams. Some companies have also found that using honor systems is an effective way to promote smoking cessation. No matter what path employers pursue, it is essential that they understand the federal and local regulations on nicotine screening and have a legal professional review all company policies and procedures.
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