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February 04, 2005
Employer on Good Footing with Smoking Ban, Experts Say

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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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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