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Some discuss legal issues of not hiring smokers

By Shaun Zinck, Law Bulletin staff writer

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Companies across the country are shifting from a smoke-free work place to a smoker-free workplace, said Daniel J. Schuch, a labor and employment associate in Cozen, O’Connor’s Houston

Baylor Health Care System in Dallas announced in September it would stop hiring smokers starting this year, Schuch said.

Hospital systems started the trend by looking to curb the health insurance costs of employees, he said. In 2007, the Cleveland Clinic became the first major institution to enact such a ban when it announced it would test potential employees for nicotine. In July, health insurance giant Humana
announced it wouldn’t hire smokers.

Companies trying to ban smokers from employment will first face opposition at the state level, Schuch said.

“A lot of states have enacted legislation that protects workers from activities outside of the workplace,” he said.

In Illinois, the Right to Privacy in the Workplace Act protects employees. The act prohibits companies from refusing to hire, or terminate a current employee, for consuming alcohol or tobacco off company property and during nonwork hours.

The law, in general, exempts nonprofit companies that discourage the use of those products to the general public.

Chicago attorney Julie Badel of Epstein, Becker & Green P.C., said she received questions from employers on this issue. Potential employees would find it difficult to prove that Illinois companies rejected them because they smoke, Badel said.

“A company isn’t going to come out and say we aren’t hiring you because of your race or because you’re a smoker,” she said. “It’s often times there was a legal reason for not hiring them.”

Chicago attorney Angela N. Sekerka, an associate at Wilson, Elser, Moskowitz, Edelman & Dicker LLP, said a smoker may have a claim on a federal level. The Americans With Disabilities Act (ADA) gets read more broadly since the Bush administration amended it in 2008, said Sekerka, who handles
employment and housing discrimination law.

Sekerka said she understands the benefits to employers, but wouldn’t advise them to implement the restriction.

“I think it’s a slippery slope,” she said. “What about obese people? If you look at how much smokers cost the health-care system, I would be interested to see it compared to obesity.”

Schuch said, however, the amendments to the ADA put the issue in a “state of flux” from a federal standpoint. Prior to the 2008 amendments, the U.S. Equal Employment Opportunity Commission didn’t consider smoking a disability, he said.

“However they passed these amendments, which significantly expanded the definition of a disability,” he said. “So smoking may be covered.”

Chicago attorney Maisha N. Shaw, an associate at Daley, Mohan, Groble P.C., said the amendment to the ADA put more focus on accommodations employers made for their employees with disabilities and less on whether a disability exists.

“What was happening prior to the amendment was that a lot of cases were being battled on whether someone was disabled or not,” said Shaw, who handles civil litigation. “That was where a lot of the cases were being won or lost. I think the notion was to go past that. That was not the intention of the ADA. The next step was to determine if reasonable accommodations had been made.”

For more information about the legal issues with hiring employees, please contact Maisha Shaw at 312.422.5533 or mshaw@daleymohan.com.

-Shaun Zinck, Law Bulletin staff writer

"Some discuss legal issues of not hiring smokers" was featured in Chicago Daily Law Bulletin's January 26, 2012 issue and is reprinted with permission.

View the original Chicago Daily Law Bulletin article.

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