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Should Employers Butt Out?

U-Haul’s Anti-Smoking Policy Raises Questions About Employer Lifestyle Meddling

It’s a question that’s getting to be more common in our 21st Century workplace: How far can a company go to control employee behavior off the job that might impact their health and behavior when they’re on the job?

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A case in point: U-Haul's recent decision to stop hiring smokers and nicotine users.

Starting Feb. 1, the moving-equipment and storage-unit rental company implemented a nicotine-free policy in states that don’t have protections for smokers’ rights.

The Phoenix-based company says it’s doing this because they want a healthier workforce.

“This policy is a responsible step in fostering a culture of wellness at U-Haul, with the goal of helping our team members on their health journey,” said Jessica Lopez, U-Haul’s chief of staff, in a press release.

Not the First of Its Kind

According to a report in the Washington Post, “prospective job applicants in 21 states where companies are allowed to refrain from hiring nicotine-using individuals can expect to see the anti-nicotine policy on job applications and to be questioned about their nicotine use, according to the company. They can also be required to undergo nicotine screening to be deemed hirable in states where testing is allowed. U-Haul, which employs more than 30,000 people across the United States and Canada, will grandfather in current workers who might be nicotine users. The company offers nicotine cessation assistance to employees.”

Sound extreme? Maybe, but U-Haul isn't the first employer to drop this on their workforce.

As The Atlantic recently noted, refusing work to tobacco users may be an extreme measure, but it’s not unheard of in the U.S. Companies such as Alaska Airlines, Miracle-Gro and some health-care companies “forbid smokers in their ranks in states where it’s allowed, in addition to countless others with rules on tracking physical activity, weight and sleep."

The magazine also wrote that “this increase in managerial nosiness was encouraged for years by regulations by the Affordable Care Act, and now more than 80% of large employers offer wellness programs, many of which prompt workers to avoid punishment or compete for cash by counting calories, tracking steps, or losing weight. Some programs go further, requiring employees to maintain a certain waist size to avoid fees.”

Just how big a problem is this for employers? According to the Centers for Disease Control and Prevention, smoking-related medical expenses add nearly $170 billion a year to employer and government medical expenses. In addition, employers also suffer $156 billion in lost productivity due to smoking and related health issues.

Canada Considers Nicotine Addiction to Be a Disability

Numbers like that show why so many companies are aggressively pushing health and wellness initiatives for their employees, but intrusive workplace policies that get launched in the U.S. don’t seem to travel very well. That’s because other countries generally take a different view of how intrusive employers can be when it comes to what employees do when they're off duty.

For example, although U-Haul operates in Canada as well as the U.S., Canadian legal experts say that it’s highly unlikely the new nicotine-free job requirement will ever take hold there.

That's because, as Stuart Rudner, a Toronto-based employment lawyer, recently told the Calgary Star, in Canada “employers are forbidden under the country’s Human Rights Act to discriminate against applicants based on race, sex and disability.”

Under the Canadian Human Rights Act, addictions are classified as a disability, and as a result, they would not be something that an employer could legally consider when they are making hiring decisions.

Rudner said the law hasn’t been tested in Canada, but if someone were to take a potential employer to court with proof their status as a smoker prevented them from being hired, he believes the job applicant they would win.

“It’s actually the addiction that protects the person,” he said.

Canada’s view that smoking and nicotine addiction is a disability that actually gives employees protection from workplace discrimination is generally accepted in most of the world outside the U.S. In fact, even Americans working overseas for U.S.-based companies are not always held to the same workplace standards that they would be if they were back on American soil.

Human resources outsourcing company C2 tells clients that, “as a general rule, federal employment laws do not apply to employees stationed overseas unless the law itself clearly and specifically states that it applies outside the boundaries of the United States. ... and when U.S. law will apply to overseas employees can be complex and may require adherence to the conflict-of-law principles where foreign labor codes and practices may clash with U.S. laws.”

Is This Really Just Lifestyle Discrimination?

The biggest clash with U.S. laws — and specifically, this new anti-smoking policy at U-Haul — turns around the notion of “lifestyle discrimination,” and it’s generally something that is prohibited in the rest of the world even as it seems to be growing in the U.S.

The American Civil Liberties Union has come out against nicotine-free hiring, labeling it as — you guessed it — “lifestyle discrimination.”

“Should an employer be able to forbid an employee from going skiing? Or riding a bicycle? Or sunbathing on a Saturday afternoon?” an ACLU legislative briefing asks. “All of these activities entail a health risk.”

Heather Bussing, a California employment attorney who frequently deals with hiring and talent management issues, believes that “the policy of regulating people’s off duty conduct is a bad idea, because you have to justify it by some legitimate business reason. And if a person doesn’t smoke at work, or in the trucks, or in whatever they’re doing, then it really should be none of the employer’s business.”

But she also sees the other side of the coin — that many employers are trying to encourage healthy behavior because healthier employees are usually happier and more productive. That, at its core, is what the new U-Haul policy seems to be getting at.

Bussing understands that, too, and she makes one more point worth thinking about.

“I encourage employers to have smoke-free workplaces,” she said. “I’m all for that, because smoke gets into the HVAC system and we know that it’s a health issue, so I don’t have any qualms about them saying you cannot smoke at work. But I think the line is that when you are on your own time you should be free to do the things that you want to do — as long as it doesn't interfere with your capabilities to do the work.”

About the Author

John Hollon is a freelance writer with WorldatWork.   


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