Michigan smokers can fume all they want, but there's no law preventing employers
from refusing to hire them or even firing them if they refuse to quit.
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Get Your Report Now!That's the judgment of legal experts interviewed by many news organizations after Weyco Inc., a medical benefits administrator based in Okemos, Michigan, saw four of its approximately 200 employees quit in January, rather than submit to a mandatory smoking breath test. Weyco had just instituted a policy that banned employees from using tobacco, even during non-work hours, and it was using the test to enforce the policy.
A spokeswoman for the American Civil Liberties Union of Michigan told the Detroit
News that her organization decided not to challenge the Weyco policy because
there is no state law prohibiting employers from controlling behavior outside
the workplace.
Maybe Michigan residents should consider demanding such a law, added the spokeswoman,
Wendy Wagenheim.
"At least two dozen other states prevent lifestyle discrimination, and
that's possible in Michigan as well if people are concerned about their privacy,
as well they should be," she said.
"To think a company is trying to control off-site behavior when it doesn't
affect their job will really bring people out in real numbers to address what's
happening to privacy in this country."
Michigan and federal civil rights laws do prevent discrimination based on age,
race, color, gender, marital status, national origin, weight, height, and religion.
But as long as those laws are followed, "(a)n employer is free to hire
on the basis of what it considers desirable traits, skills, characteristics
and so forth," lawyer Linda Goldberg, of the firm Miller Canfield, told
the News.
The newspaper also noted that Michigan, with 1.9 million smokers and one of
the highest cigarette taxes in the nation, has no "smoker's rights law."
In 29 other states, there is such a law.
And like many other states, Michigan is an "at-will" state, meaning
an employer may generally terminate an employment relationship at any time and
for any reason. Exceptions include the anti-discrimination laws mentioned above,
collective bargaining agreements, express employment contracts, or implied employment
contracts.
Justifying the policy
In an interview with CBS News, Weyco founder and chief executive Howard Weyers
said his company adopted the smoking ban out of a desire to contain rising health-care
costs and to prepare employees for the higher burden they face in the emerging
consumer-driven health plans.
"We want to help our employees to handle the risk of a high-deductible
plan," he said. "They can do that by managing their health care."
To that end, the company gradually built up to the ban. In early 2003, it quit
hiring tobacco users; by the fall of that year, it had forbidden the staff from
smoking on the premises. Starting in 2004, it added a tobacco "assessment"
of $50 a month per worker who smoked and didn't go to a cessation class.
Finally, Weyco gave its employees a 15-month advance notice that those who
still smoked on or off the company's watch by January 2005 would be terminated,
Weyers told CBS.
About 20 of Weyco's 200 workers kicked the habit, and four quit before the
company's mandatory testing last month, he said.
Weyco has made its no-smoking policy, a six-page document, available for downloading
at its website, http://www.weyco.com.
Aside from the departure of the four employees, Weyco workers have generally
adapted to the new policy, according to Weyers.
"I've had a number of employees come to me who were totally against the
policy but quit the habit," he told CBS. "They're still here. They
didn't agree with it, but they made a decision (about) what was going to be
more important to them: their job or the use of tobacco. I don't think it's
a hard decision."
Weyers added that other companies should demand similar changes from their
workers, though he's not extending the policy to include obesity.
Backlash coming?
But one union organizer told another Michigan newspaper, the Lansing State
Journal, that worker shock and anger over the Weyco policy will be a shot in
the arm for the labor movement.
"The first thing I thought when I heard about it was this is going to
help me," said the organizer, John Cakmakci, executive director of the
United Food and Commercial Workers union Local 951.
He noted that union contracts typically limit an employer's power to fire at
will.
"If you weren't thinking about a union before, you are now," Cakmakci
said. "This really shows the vast power companies have under at-will laws."
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