In Maryland, Smoking Could Cost You Job

July 05--Anyone who wants a job next year at Anne Arundel Medical Center -- whether as a surgeon or security guard -- will have to prove they don't smoke or use tobacco.

The Annapolis hospital's new hiring policy might be controversial, but it is legal in Maryland and more than half of the United States. And it's a type of job screening that is gaining favor with employers -- from hospitals to companies such as Alaska Airlines -- trying to control rising health costs and cultivate a healthier, more productive workforce.

Anne Arundel Medical Center, like a growing number of health systems, universities and other businesses, will require a urine test for nicotine use for all applicants starting next July. The policy -- which will not apply to current employees -- is just one piece of the hospital's existing ban on tobacco use that was expanded July 1 to apply at all hospital buildings and surrounding public sidewalks, parking lots and garages. It covers not only cigarettes, but cigars, pipes, snuff and e-cigarettes.

Hospital representatives, who say their primary mission is "living healthier together," say the new rules grew out of two years of researching ways to prevent tobacco-related diseases -- and hearing out those who questioned the policy's fairness and legality. The hospital hopes that health care costs will decrease over the long term, but that was not the primary driver, said Julie McGovern, the center's vice president of human resources

"We're doing this to improve the health status of our community," McGovern said. "It's a serious obligation we have ... and one of the important steps we can take to be a role model."

But others say such policies set a dangerous precedent.

"These things are extremely intrusive," said George Koodray, assistant U.S. director of the Citizens Freedom Alliance, an organization that advocates for smokers' and property rights. "I think they really overstep. They really, in a lot of respects, defy so many principles that we believe in as Americans.

"What these folks are saying is they're going to deny a person's livelihood due to the fact that people are consuming a perfectly legal product that does not necessarily adversely affect their health," he said.

About 42.1 million people nationwide -- about 18 percent of the population -- smoke cigarettes, according to a February report from the Centers for Disease Control and Prevention. A 2013 survey by the U.S. Substance Abuse and Mental Health Administration found that 13.4 million people smoked cigars, 2.5 million smoked tobacco in pipes and about 9 million used smokeless or spit tobacco.

Some smokers say employers have no right to regulate employees' health-related choices outside the workplace.

Nickia Trafton, 40, takes smoke breaks from work as a phlebotomist at Mercy Medical Center to help relieve stress, adding that smoking is a personal choice she's made with full knowledge of the health risks.

"Everyone has an outlet," she said. "Cigarettes are sold over the counter -- it's not illegal. ... My smoking doesn't interfere with my patients."

Her co-worker Pamela Schofield, also a phlebotomist, wondered who employers might target next.

"What about obese people, or if you weigh over a certain amount you are going to not be hired?" she said. "Smokers are not bad people."

Dajuan Robinson, a 25-year-old histology technician at Mercy has smoked for five years and is quitting now, largely because otherwise he'd be penalized with an added charge on his health insurance premium. But he believes employers with no-smoking policies in hiring have gone too far.

"I think it's a form of discrimination -- you can't say someone can't come to work because they smoke," he said. "It's not fair. Smoking is legal at the end of the day."

Federal law does not protect tobacco users from discrimination. Smokers are protected from employment-based discrimination in at least two dozen states, but Maryland is not one of them.

"We're sure it's enforceable," McGovern said. "We think it's the right thing to do in trying to create a healthy population. That's our role."

Cigarette smoking, which causes more than 480,000 deaths a year nationwide, is the nation's leading preventable cause of death, according to the CDC.

"It contributes to more of the health burden than any other habit," said Cathy Brady-Copertino, executive director of the medical center's Geaton and JoAnn DeCesaris Cancer Institute

Tobacco-free employers include the Cleveland Clinic in Ohio; the Geisinger Health System in Wilkes Barre, Pa.; the Baylor Health Care System in Dallas; the University of Pennsylvania Health System; and the World Health Organization. Other employers with such hiring bans include Scotts Miracle-Gro and Alaska Airlines.

No-smoking rules in hiring stirred controversy at first but have led to no legal challenges and relatively few nicotine test failures, two of the employers said.

"The challenge in the beginning was, are we not going to have a lot of people to hire?" said Dr. Paul Terpeluk, medical director for employee health at the Cleveland Clinic. "We never did reduce our applicant pool because of this program. We still have the same amount of people who want to work here."

Out of 30,000 to 40,000 applicants who have been hired since the policy was put in place in September 2007, two years after the campuses went smoke-free, just 1 percent to 2 percent have tested positive for nicotine, he said.

"It's pretty well known we do not hire smokers," Terpeluk said. "It's difficult for someone to apply here thinking we do not have that policy."

The clinic credits the hiring policy and employee cessation programs with helping to reduce absenteeism and instances of chronic disease and helping to control health care costs, said Dr. Daniel Neides, medical director for the clinic's wellness institute.

Geisinger Health System in central Pennsylvania, a 21,000-worker system that had been phasing in a tobacco-free program at its campuses since 2000, stopped hiring smokers in 2012.

"We pride ourselves on preventative measures," said Margaret Heffers, Geisinger's vice president for human resources. "The No. 1 thing you can do to promote better health is to quit smoking. We needed to model what we say. ... We have not found it to be a major stumbling block to recruitment."

But some worry about where such policies might lead.

"What's next?" said Koodray, a cigar smoker and president of the New Jersey-based Metropolitan Society, a private cigar club. "Where does this stuff go? There's all kinds of things that we do in our lives that expose us to some level of risk. This is private enterprise, but it's way overstepping. Would they dare to make a law like this that's against people who are obese or overweight?"

Employers who adopt no-smoking policies in hiring might be careful not to discriminate but still could open themselves to legal challenges, said Bruce Elliott, manager of compensation and benefits for the Society for Human Resource Management, who said he does not expect such rules to proliferate.

"Is it right for an employer to basically dictate to employees how to live their life and what their habits are?" he said. "A better approach would be more smoking-cessation programs. But the idea of excluding a candidate because he or she happens to be a smoker, I'd be careful about that."

Hospitals and other employers in states without job protections for smokers are within their rights to adopt such policies, employment law experts say.

"Clearly, when an employer starts to make hiring decisions based on something other than merit or job description, they run a risk of running afoul of discrimination law," said J. Thomas Spiggle, a workplace attorney at the Spiggle Law Firm in Arlington, Va. But as far as targeting smokers, he added, "I don't know on what basis it could be challenged. I wouldn't touch a case like that to challenge the hospital."

Though hospitals and universities have been among the first to implement smoker hiring bans, such policies are fairly uncommon among private employers, said Kathleen Hoke, director of the Legal Resource Center for Public Health Policy at the University of Maryland School of Law. The center, which offers pro bono legal advice on tobacco regulation, injury prevention and reduction of obesity and hypertension, helped Anne Arundel Medical Center with its legal research.

Targeting tobacco users made sense, but the prohibition won't be followed by bans based on other health- or behavior-related issues, said Brady-Copertino, of the Anne Arundel hospital.

"We have years and years of research on tobacco as an addiction," she said. "We do not have adequate research on things such as obesity and what needs to be done about it."

The Annapolis hospital, which estimates that roughly 20 percent of its 4,100 employees are smokers, has paired its new rules with increased smoking-cessation help for employees who want to quit -- offering classes, patches and nicotine gum for free.

It sees its role in promoting a smoke-free environment as extending well beyond its borders. It has doubled its nicotine treatment staff and plans to prepare for its ban by offering free cessation help and classes to area employers and businesses. That effort should promote public health while increasing the hospital's pool of potential smoke-free applicants.

"There's a year for people to get ready and make the decision to stop smoking so they can be employed by us," McGovern said. "Our goal is to get out to as many places as possible."

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