The Boston Globe’s medical blog reports that the Massachusetts Hospital Association has decided it will no longer hire prospective employees who use tobacco products. The Massachusetts non-profit organization, which currently employs 45 people, will enforce the policy through an honor system beginning on January 1, 2011. The organization offered the small number of its current employees who do use tobacco products assistance in quitting while the policy was under considerations over the past several months.
The group lauds the new policy on its website as “a bold move to promote a healthy workforce and reduce the leading preventable cause of death in the US.” MHA president Lynn Nichols puts it even more bluntly, stating, “We just aren’t going to welcome users of tobacco inside our workforce.” Dr. Michael Siegel, a Boston University School of Public Health professor who has long worked to promote tobacco-free workplaces, criticizes the MHA’s decision. He argues that the appropriate approach is to offer employees assistance in quitting tobacco use, rather than ostracizing them from the workplace altogether.
Beyond simply being a public health pronouncement, however, the MHA’s new policy has legal ramifications, as well. Employers thinking of emulating the MHA need to consult with legal counsel to ensure such a move would be legal in their state. While there appears to be no Massachusetts precedent restricting the MHA’s decision, twenty-nine states have enacted “Smokers’ Rights” laws prohibiting particular types of discrimination against persons because of their status as tobacco users.
New Hampshire RSA 275:37-a, for instance, states that “No employer shall require as a condition of employment that any employee or applicant for employment abstain from using tobacco products outside the course of employment.” Connecticut Gen. Stat. § 31:40s goes further, also prohibiting discrimination in “terms, conditions or privileges of employment” based on smoking outside the workplace. Interestingly, the Connecticut statute exempts non-profits “whose primary purpose is to discourage use of tobacco products by the general public” from the provisions of the law, but this language would likely not protect a hospital association such as the MHA.
The employers need to be wary that their “bold move” might cross the line into a violation of their employees rights under state labor statutes. And as indicated above, such statutes are not limited to the traditional tobacco producing states.
Stephen Coppolo, a member of NKMS’s Employment Counseling and Litigation Group, contributed this article.
