By Phil Riske, managing editor, Rose Law Group Reporter
A memo sent by Pima County Administrator Chuck Huckelberry said prospective employees would be tested for nicotine as part of the hiring process, and the county might soon refuse to hire anyone who smokes, and smokers already on the payroll can expect higher health insurance rates.
The Arizona Daily Star reports about 32 percent of county workers are smokers.
If Pima County were to adopt this proposed “no-smoker” policy, it would not be the first employer in Arizona to do so, said Rose Law Group Employment Law attorney David Weissman.
Insurance giant Humana made headlines several years ago when it implemented a policy refusing to hire workers in Arizona who smoke or use other tobacco products and requiring all new hires to agree to abstain from tobacco use while employed by the company.
“Indeed, this is a growing trend among health care companies, including Scottsdale Healthcare and Cancer Treatment Centers of America, which have policies in place similar to Humana’s,” Weissman said, adding Maricopa County has instituted a health plan requiring employees to submit to nicotine testing and charges higher rates to those who test positive.
He said 30 states see no-smoker policies as illegal; and they have laws prohibiting discrimination against smokers. Neither Arizona nor federal lawS contain any express provisions protecting smokers from employment discrimination, however.
Weissman, also a health care lawyer, said it is not hard to understand why Arizona employers would be interested in putting such policies in place given the health care costs for tobacco users are estimated to be $3,000 to $4,000 more per year than for non-smokers,
“That said, there may still be legal risks associated with such policies, such as a claim under the Americans With Disabilities Act Amendments Act of 2008, even in states like Arizona,” Weissman said. “Accordingly, employers would be wise to consult with counsel before putting any type of no-smoker policy in place.”
