Tobacco Free Workplaces: Legal Issues and Implications

1. Tobacco Free Workplaces: Legal Issues and Implications March 10, 2014

2. Overview • What are Tobacco-Free Policies? • Are Tobacco-Free Policies Legal? • Additional Considerations When Contemplating a Tobacco-Free Policy

3. What are Tobacco-Free Policies? • Definition – Policy that limits or prohibits the use of any tobacco product, including cigarettes, cigars, smokeless tobacco, hookah, ESDs, etc. • Types of Tobacco-Free Policies: • Ban against use of tobacco products on campus • Ban includes buildings, grounds, parking areas, employer vehicles • Applies to employees, visitors, patients and volunteers • Ban on employee tobacco use during work hours • Employees may not use tobacco products during work shift, even if off campus • Tobacco-Free employment and hiring policy • Employees prohibited from using tobacco products at all times • Tobacco use results in suspension/termination or revocation of job offer

4. Are Tobacco-Free Policies Legal? • A tobacco-free policy is legal and valid if it does not violate any constitutional right or federal, state or local law. • Three Questions: • Does the Constitution create a special right to smoke or use tobacco? • Does federal law prohibit tobacco-free policies? • Does state or local law prohibit tobacco-free policies?

5. Tobacco-Free Policies are Constitutional • Tobacco use is legal, but there is NO constitutional right to use tobacco products • Proponents of tobacco user rights often argue: • Tobacco-Free policies violate an individual’s constitutional right to privacy; OR • Discriminate against a tobacco user in violation of the Equal Protection Clause

6. Are Tobacco-Free Policies Constitutional? • Tobacco-free policies do NOT violate the constitutional right to privacy • “Fundamental right to privacy” is a type of liberty specially protected under the constitution • U.S. Supreme Court has repeatedly held that the fundamental right to privacy only applies to marriage, intimate relationships and rearing of children (i.e. marriage, procreation, abortion, contraception and raising/educating children) • No court has extended this right to include smoking • “There is no more a fundamental right to smoke cigarettes than there is to snort heroin or cocaine or run a red-light.” Fagan v. Axelrod , 550 N.Y.S. 552, 559 (1990).

7. Are Tobacco-Free Policies Constitutional? • Tobacco-Free policies do NOT discriminate against tobacco users in violation of the Equal Protection Clause • The Equal Protection Clause guarantees “equal protection of the laws,” meaning a law or policy cannot treat groups of people differently without adequate justification • Policies discriminating against an inherent or immutable characteristic (i.e. gender, race or ethnicity) are rarely upheld, but laws discriminating against other groups need only be “rationally related to a legitimate government goal.” • Tobacco use does not qualify because people are not born using tobacco and although highly addictive, it is a behavior people can stop.

8. Are Tobacco-Free Policies Legal? • Tobacco-free workplace policies are legal under Federal law. • Three major Federal laws prohibit employment discrimination: • Title VII of the Civil Rights Act (1964) • Prohibits employment discrimination based on race, color, religion, sex, or national origin • Genetic Information Nondiscrimination Act (2008) • Prohibits employment discrimination based on genetic information about an applicant, employee, or former employee • Americans with Disabilities Act (1990) • prohibit employment discrimination against qualified individuals with disabilities

9. Are Tobacco-Free Policies Legal? • Americans with Disabilities Act • An employer shall not deny a qualified individual employment because of a disability • Law defines disability as a “physical or mental impairment that substantially limits a major life activity.” • Tobacco use or nicotine addiction does not qualify as a physical or mental impairment under the Act. • Nicotine addiction “…is not a ‘disability’ within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of ‘disability,’ which would render somewhere between 25% and 30% of the American public disabled...In any event, both smoking and ‘nicotine addiction’ are readily remediable, either by quitting smoking outright through an act of willpower or by the use of such items as nicotine patches or nicotine chewing gum. If the smokers‘ nicotine addiction is thus remediable, neither such addiction nor smoking itself qualifies as a disability within the coverage of the ADA, under well-settled Supreme Court precedent.” Brashear v. Simms, (Md. 2001)

10. Are Tobacco-Free Policies Legal? • Tobacco-Free Workplace Policies are Legal under Maryland Law • No Maryland law prohibits employers from making employment decisions based on off-duty conduct, including tobacco use • “Smoker Protection Laws” – at least thirty states (and D.C.) have laws that prevent employers from discriminating based on off-duty conduct that is legal, including tobacco use • No statute in Maryland protects tobacco users from discrimination

11. Additional Considerations • Tobacco-Free Employment Policies • Tobacco users take more sick days than non-tobacco users (Journal of Tobacco Policy & Research) • Even tobacco users in relatively good health have higher medical costs • Tobacco use is the leading preventable cause of death and disease in the United States • Health care organizations are charged with healing the sick and cultivating healthier communities – it makes sense to implement a tobacco-free workplace policy

12. Additional Considerations • Tobacco-Free Policies and Labor Unions • In union-represented work environments, employers may be obligated to subject any tobacco-free policies to collective bargaining, depending on contract provisions. • The National Labor Relations Board (NLRB) has ruled consistently that tobacco policies are a mandatory subject of bargaining. • In the absence of clear contract language to the contrary, any proposed change to an existing workplace tobacco policy can be implemented unilaterally only if both parties have bargained to impasse and have reached a good-faith deadlock on the policy issue

13. Additional Considerations • Lack of Evidence Demonstrating Tobacco-Free Employment Policies Reduce Health Care Costs • “No longitudinal study provides demonstrable evidence that employers who cease hiring tobacco users reduce overall health care costs.” -University of Pennsylvania Health System • Requiring tobacco-using employees to pay a higher premium on their healthcare benefit or enroll in cessation courses may be more effective than outright ban

14. Additional Considerations • Tobacco-Free Employment Policies adversely impact lower socio-economic communities • Tobacco use rates are significantly greater among lower income and lower education groups • Tobacco-free hiring policies disproportionately affect poorer and less educated communities

15. Additional Considerations • Issues of Enforcement • Nicotine testing (depending on type) may be expensive • Studies indicate constant testing is required, because individuals often begin using tobacco again after passing a nicotine test • Attestations are difficult to enforce

16. Presenter Legal Resource Center for Public Health Policy University of Maryland Carey School of Law P: (410) 706-0842 E: wtilburg@law.umaryland.edu