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Are you concerned about your business' ability to remain competitive? about high health insurance costs? Or about harassment of workers? Or job loss due to your employer inability to remain competitive due to high health care costs? Or trying to cut health care benefits? Here is some prevention-oriented background.
The bottom line is that it is not enough for an employer to merely talk about being competitive, to merely talk about controlling health costs, or to merely have a complaint policy, wait for complaints, then perhaps discipline offenders. Such a policy is willful and itself deliberate misconduct. Worse, the offender may be believed over the victim!!
The proper solution, the legal solution, as voluminous case law shows, is to not hire the foreseeable offenders in the first place. In law, the duty is to be pro-active, prevent incidents, prevent them far in advance, indeed, prevent hiring foreseeable perpetrators.
This site has data showing why and how to not hire a specific, distinct body of persons foreseeably and notoriously dangerous to themselves, others, and property. (This dangerousness increases insurance costs, both health and fire. See our cost analysis site).
The concept term is avoiding "negligent hiring." Others may talk or write in theoretical terms. This site is more specific. It focuses, and thus tells you who is disproportionately likely to commit offenses, which include employment offenses.
Who are in this category?
Surgeon General Reports 1964 to present show that smoking is dangerous to self, others, and property. Cigarettes contain and emit toxic chemicals (Toxic Tobacco Smoke, "TTS," or, sometimes, ETS) far above legal limits. The pertinent legal adjective is "ultrahazardous."
The result of hiring smokers is to violate the right to "fresh and pure air," endanger both smokers and nonsmokers, and constitute a continuing safety hazard rendering the employer always subject to penalty for allowing it. TTS exposure causes Increased Risk of Death. This violates your legal "right to fresh and pure air," especially when you end up dead!
Smokers produce Toxic Tobacco Smoke (TTS). This is an "extraordinary hazard," see definition:
| "One not commonly associated with a job or undertaking. If hazards are increased by what other employees do, and injured employee has no part in increasing them, they are "extraordinary." Stone v Howe, 92 N.H. 425, 32 A.2d 484, 487 [1943 NH LEXIS 107 (1943)]."—Black's Law Dictionary, 5th ed (St. Paul: West Publishing Co, 1979), p 527. |
Smokers and TTS also pose an
| "extraordinary risk," "one lying outside of the sphere of the normal, arising out of conditions not usual in the business. It is one which is not normally and necessarily incident to the employment. It is one which may be obviated by the exercise of reasonable care by the employer." Black's Law Dict., 1979, supra, p. 527. |
Such "reasonable care" includes obeying all pertinent laws, e.g., the Occupational Safety and Health Act of 1970, 29 USC § 651 - § 678 which forbids hazards (meaning, behaviors and substances concerning which regular exposure foreseeably leads to "material impairment of [employee] health").
From a "profile" standpoiunt, smokers have disproportionately higher rates of behaviors dangerous to themselves, others, and property. These behaviors include some that can be deemed immoral, illegal, career-shortening, or otherwise disqualifying. Examples include:
From a profile standpoint, it is smokers who disproportionately commit such acts. In the broad sense, crime includes sexual harassment and other abuses directed against coworkers on the job. (Smokers disproportionately commit crime).
Another often overlooked smoker effect adversely impacting nonsmokers is this. Employers with smokers on the roles are forced to divert substantially higher amounts of funds for health insurance. This reduces the funding amount available for salaries and benefits for the nonsmokers. Ask yourself about your salary, how much lower is it due to smokers on the rolls? Answer: Undoubtedly. If your employer does not have a "No Smokers Hired" policy, suggest it adopt one.
For more information, including about smokers' off-the-job behavior, including the lingering effects that carry-over onto the job, read the above sites. This site is tailored to on-the-job, and what adverse traits and/or disorders certain applicants bring from off the job, pre-hiring, to the job.
Pursuant to the legal concept of "negligent hiring," human resources professionals in the hiring business do not seek merely absence of negative data on an applicant. They also seek affirmative positive statements of non-dangerousness to self/others. This is a good human resources management principle. See William J. Connelly, "How To Navigate The River Of Legal Liability When Hiring," Personnel Journal, Vol 63, pp 32-46, especially p 38 (March 1986). And it is the law.
Court cases such as Todd v Brown & Williamson Tobacco Corp, 924 F Supp 59 (WD La, 9 May 1996), admit that tobacco dangerousness is obvious. Perez v Brown & Williamson Tobacco Corp, 967 F Supp 920 (SD Texas, 4 June 1997), said tobacco is inherently dangerous and so known.
There is also the issue, or duty, of warning nonsmokers of the danger of toxic tobacco smoke (TTS), involuntary smoking, second-hand smoke. See precedents, e.g.,
| Iandorio v Kriss & Senko Enterprises, Inc, 512 Pa 392; 517 A2d 530, 534 (Penn, 17 Nov 1986) ("[the smoker] notwithstanding his actual knowledge of the [foreseeable harm] proceeded to light a cigarette while [the victim] was standing only a few feet away . . . the employer . . . not only knew that its employees smoked at work, but, in fact, dictated where . . . exhibited . . . control over its employees' smoking")
Shaw v Brown & Williamson Tobacco Corp, 973 F Supp 539 (D Md, 1997) (citing issues of negligent misrepresentation and failure to warn and intentional misrepresentation)
Wolpin v Philip Morris, Inc, 974 F Supp 1465; 1997 US Dist LEXIS 12915; 1997 WL 535218 (D SD Fla, 1997)
our worker compensation case site. |
On the issue of smokers killing nonsmokers on the job, see, e.g.,
"Passive smoking blamed for wife's death," in Hong Kong Standard (8 Jan 2005) by reporter Dennis Ng
"Second-hand smoke killed my wife, says businessman," in
South China Morning Post (8 Jan 2005) by reporter Agnes Lam.
See also "Can smoking foul up your chanes of getting hired?:
Some companies are choosing to hire employees based on their abstinence from tobacco," says reporter
David Mielach, BusinessNewsDaily, Wednesday, 6 March 2013.
The case of Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969) upheld the concept of cigarettes' deleteriousness:
| "The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group." |
Federal law 29 USC § 706.(7)(B) precludes hiring dangerous people. This is particularly true with persons suffering from a mental disorder listed in the Diagnostic and Statistical Manual of Mental Disorders, 3rd - 4th eds; and the International Classification of Disease, 9th ed. Smoking has been so listed in all editions since 1980.
A U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p 5 (December 1977) said that if laymen knew this about smoking (that it is a dangerous mental disorder, not a mere habit), that knowledge "should have a profound impact upon the reputation of this behavior."
Smokers by definition inhale and spew toxic chemicals in quantities above safety regulation limits. This is negligence per se. One "court was first confronted with the application of safety regulations as a standard for determining negligence in Marshall v Isthmian Lines, Inc., 334 F2d 131 (5th Cir., 1964). . . . 'The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself.' . . . Significantly, the purpose of these regulations are to promote safety in the industry and establish an unambiguous standard for measuring industrial safety . . . a violation of the Safety and Health Regulations is negligence per se." Arthur v Flota Mercante Gran Centro Americana S.A., 487 F2d 561 (CA 5, 1973).
Thus, "violation of a statute is negligence per se if the statute was intended to protect a class of persons, including the plaintiff, from the type of harm which resulted from its violation. . . . it would be absurd indeed to maintain that one of the purposes of the statute in question was not to protect" workers from toxic chemicals, Thaut v Finley, 50 Mich App 611; 213 NW2d 820 (1973).
A significant body of case law exists on the duty to avoid doing negligent hiring, i.e., the duty to do proper hiring. People who are unlawfully hurt, injured, or worse, by dangerous workers are entitled to sue, to win, and to obtain redress. Cases and case collections include but are not limited to the following:
Bowen v Illinois Central Ry Co, 136 F 306; 70 LRA 915; 69 CCA 444 (CA 8, 1905)
Annot., 70 LRA 915 (1905)
Duckworth v Apostalis, 208 F 936 (D C Tenn, 1913)
Davidson v Chinese Republic Restaurant Co, 201 Mich 389; 167 NW 967; LRA 1918E, 704 (1918)
Annot., 40 ALR 1215 (1926)
Annot., 114 ALR 1041 (1938)
Bradley v Stevens, 329 Mich 556; 46 NW2d 382; 34 ALR2d 367 (1951)
Annot., 34 ALR2d 372, 390 § 9 (1954)
Hersh v Kentfield Builders, 385 Mich 410; 189 NW2d 286 (1971)
Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975)
Ponticas v KMS Investments, 331 NW2d 907 (Minn, 1983)
Welsh Mfg v Pinkerton's, Inc, 474 A2d 436 (RI, 1984)
Annot., 44 ALR4th 603 (1984) |
The principles against negligent hiring are well established. What if an employer errs, hires a foreseeably dangerous person such as a smoker, who then commits smoking on the job or starts a fire? Answer: Employers are to correct that mistake. A clear judicial warning to employers to fire smokers was issued in Keyser Canning Co v Klots Throwing Co, 94 W Va 346, 361; 118 SE 521, 527; 31 ALR 283 (1923), where the West Virginia Supreme Court says that the smoker who had set a fire burning a building:
| "smoked . . . notwithstanding repeated warnings. Why was he warned? Because defendant [employer] knew of the danger. Then, when it [the employer] saw [that he, the smoker] disobeyed its warnings, it was its [the employer's] duty to stop his smoking there, and, if necessary, to discharge him . . . put him out of the building." |
In the Spanish American War of 1898, the US Army refused to enlist smokers as symptoms of deteriorated health were found by examining doctors:
| "It is a part of the history of the organization of the volunteer army in the United States during the present year [1898] that large numbers of men, otherwise capable, had rendered themselves unfit for service by the use of cigarettes, and that among the applicants who were addicted to the use of cigarettes more were rejected by examining physicians on account of disabilities thus caused than for any other, and perhaps every other, reason."--Austin v State, 101 Tenn 563; 48 SW 305; 70 Am St Rep 703; 50 LRA 478 (22 Dec 1898) aff'd 179 US 343; 21 S Ct 132; 45 L Ed 224 (19 Nov 1900). |
"Smoking employees cost $6,000 a year more, study finds" (NBC News, 3 June 2013).
"The findings support a growing trend among employers to not only ban smoking in the workplace, but to refuse to hire smokers in the first place, argues Micah Berman of Ohio State University, who led the study." See the study online at "Estimating the cost of a smoking employee," in Tobacco Control, Vol. 10, p 1136 (3 June 2013).
For background on the World Health Organization policy against hiring smokers, see these pertinent websites: http://www.who.int/employment/FAQs_smoking_English.pdf and http://www.who.int/tobacco/communications/events/codeofpractice/en/index.html. For background on employers in Norway opposing hiring smokers, see "Employers reluctant to hire smokers" (20 May 2012).
Major Michigan hospital systems, including the William Beaumont and Henry Ford Systems, have established policies against hiring smokers. See news articles in
Crain's Detroit Business (27 September 2012), the Detroit Free Press (28 September 2012), and the Detroit News (29 September 2012).
Florida's "Delray Beach City Commissioners on Tuesday announced a policy that would help the financially struggling city save money – refusing to hire smokers. Each smoker costs a company or government agency an average $12,000 in health and disability-related costs . . . The policy resembles others already implemented in other South Florida cities . . . In the South Floridian city of Hollywood, employees caught smoking are instantly terminated from their positions," says the article, "Florida city passes ban on hiring smokers" (Palm Beach Times, Wednesday, 3 October 2012).
Of course employers are correct to not hire smokers. Tobacco causes brain damage in the users, is recognized in mental disorder terms and is linked to increased crimes.
See, e.g., the U.S. Government Department of Health and Human Services' reference book, the International Classification of Disease (ICD-9-CM) (September 1980), p 233, Item 305.1, Tobacco Use Disorder (T.U.D.) (second entry on the page), and the American Psychatric Association's reference book, the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) (3rd ed., 1980), pp 159 and 160, and 176, 177, and 178, and all subsequent editions, i.e.:
the
DSM-III-R (1987), pp
150 and 151, and 181 and 182,
the
DSM-IV (4th ed., 1994), pp
242, 243, 244, 245,
246 and 247;
the
DSM-IV-TR (2000), pp 264,
265,
266,
267,
268, and
269
the DSM-5 (2013), pp 571-576.
This fact of smoking in mental disorder terms has judicial recognition. In 1980 and 1981, federal courts in Nat'l Org. for Reform of Marijuana Laws v Bell, 488 F Supp 123, 138 (D DC, 11 Feb 1980) (referencing tobacco as a drug) and Caprin v Harris, 511 F Supp 589, 590 n 3 (D ND NY, 8 April 1981) (referencing the DSM-III), have said this (reference to tobacco smoking in mental disorder terms) in official documents. In the latter case, a federal district court dealing with a smoker with the symptom of "refusal to cease smoking" took judicial notice of the International Classification of Disease, 9th rev., and its listing of "tobacco use disorder" in the mental disorders section, and of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III) and its listing of "tobacco dependence." The court noted that, "There is considerable support in recent medical literature for the proposition that smoking under some circumstances is a 'disease' similar to 'alcoholism.'"
Worse, 90% of crime is committed by smokers. See smoker crime, see, e.g.,
"Nowhere is the practice of smoking more imbedded than in the nation's prisons and jails, where the proportion of smokers to non-smokers is many times higher than that of society in general." Doughty v Board, 731 F Supp 423, 424 (D Colorado, 1989), and ALR Context.
"Nationwide, the [ratio] of smokers [to non-smokers] in prisons is 90 percent." McKinney v Anderson, 924 F2d 1500, 1507 n 21; 59 USLW 2544 (CA 9, 1991), affirmed and remanded, 509 US 25; 113 S Ct 2475; 125 L Ed 2d 22 (1993). And see criminal profile data.
Sometimes employers, to evade doing their duty to "eliminate" and "suppress" the hazard, will claim, 'we'll monitor the situation.' Yeah, what they mean is to 'monitor' and 'monitor,' or at least pretend to, until smokers' hazardous conduct renders you sick or dead, then they'll deny any resultant compensation or damages claims!
Legally speaking, 'monitoring,' whether called 'biological' or by another term, is not 'preventing' and 'suppressing' the hazard, but rather merely observing it continue! "Biological monitoring" is inadequate when it does "not eliminate or even reduce the hazard," but merely reveals it, says American Smelting & R. Co v Occ. Safety & Health Rev Commission, 501 F2d 504, 515 (1974).
| The federal Occupational Safety and Health Act of 1970, 29 USC
§ 651 - § 678 requires adherence to the duty to eliminate hazards (behaviors or substances to which regular exposure foreseeably leads to "material impairment of [employee] health," of which tobacco smoke is the most notorious example) is "unqualified and absolute," says National Rlty. & C. Co, Inc v Occ. Safety & Health Rev Commission, 160 US App DC 133, 141; 489 F2d 1257, 1265 (1973).
P 1267 says, "To establish a violation of the general duty clause, hazardous conduct need not actually have occurred, for a safety program's feasibly curable inadequacies may sometimes be demonstrated before employees have acted dangerously."
P 1268 says, "Because employers have a general duty to do virtually everything possible to prevent and repress hazardous conduct by employees, violations exist almost everywhere."
P 1264, n 27, says "permission often means only a failure to prevent . . . ." And: "An employer, of course, enjoys vast physical authority over his employees and their workplace, a fact which Congress stressed in drafting the general duty clause. See, e.g., S.Rep.No.91-1282, 91st Cong., 2d Sess., 9 (Oct. 6, 1970), U.S.Code Cong. & Admin.News 1970, p. 5177, and H.R.Rep.No.91-1291 . . . ."
Pp 1266-7, n 37, say, "we emphasize that an instance of hazardous employee conduct may be considered preventable even if no employer could have detected the conduct, or its hazardous character, at the moment of its occurrence. Conceivably, such conduct might have been precluded through feasible precautions concerning the hiring, training, and sanctioning [disciplining] of employees."
See also related OSHA precedents:
International Union, UAW v General Dynamics Land Systems Division, 259 US App DC 369; 815 F2d 1570 (1987) cert den 484 US 976; 108 S Ct 485; 98 L Ed 2d 484 (1987) (both specific standards and the "general duty clause" must be obeyed)
American Textile Mfrs. Inst v Donovan, 452 US 490, 509; 101 S Ct 2478; 69 L Ed 2d 185 (1981) (Safety is "above" all "other considerations")
American Smelting & R. Co v Occ. Safety & Health Rev Comm, 501 F2d 504, 515 (1974) ('monitoring,' whether called 'biological' or by another term, is not 'preventing' and 'suppressing' the hazard, but rather merely observing it continue. "Biological monitoring" is inadequate when it does "not eliminate or even reduce the hazard," but merely reveals it).
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Do not be deterred by fraudulent pro-tobacco arguments that not hiring smokers is somehow regulating off-duty conduct or is a "privacy" issue or is punishing "legal" conduct. No, what is being controlled is the mental and physical traits being brought from off-duty onto the job.
The US government knows this, you should too:
“Blood flow to the brain is critical for effective neural functioning and behavior. The diminution of such blood flow with long-term smoking may reduce cognitive performance.”—USAARL Report No. 86-13, supra, p 158. And “smoking detracts from learning . . . ."—USAARL Report No. 86-13, supra, p 83.
Army Regulation 600-63.4-la. (1987) summarizes Army experience on point:
"Smoking tobacco harms readiness by impairing physical fitness and by increasing illness, absenteeism, premature death, and health care costs."
29 U.S.C. § 706(7)(B) forbids hiring drug abusers such as smokers when they "constitute a direct threat to property or the safety of others."
“Smoking also discloses soldier positions, starts fires, and contributes to the cause of vehicular accidents. Smokers also are much more likely than nonsmokers to use other drugs and to get into trouble.”—USAARL Report No. 86-13, supra, p 7.
Army
USAARL Report No. 86-13, "Smoking and Soldier Performance: A Literature Review" (1986), page 149 says:
"[I]f the military somehow could restrict enlistments to nonsmokers, there would be far fewer discipline, alcoholism, and drug abuse problems in the Army and other services."
A 17 April 1986 Army Proclamation by the Secretary of the Army, says,
"Medical evidence shows overwhelmingly that the use of tobacco products adversely impacts on the health and readiness of our force. Tobacco usage impairs such critical military skills as night vision, hand-eye coordination, and resistance to cold weather injuries. Moreover, it increase susceptibility to disease. It has become a substantial threat to the well-being of our Army, and we must take immediate steps to eliminate its usage."
The longtime civil-service-wide hiring form, Standard Form 78, Certificate of Medical Examination, precludes hiring persons such as smokers with "medical findings which . . . would make him a hazard to himself or others.
Tobacco use is a notorious intoxicant. The fraudulent privacy argument would not be used against say, refusing to hire a pilot who regularly intoxicated himself at home! The frauds would be forced to admit that traits (physical traits, character traits) being brought onto the job were involved! The frauds' failure to make a similar admission on tobacco use tells us more about their integrity (or lack thereof) than about the truth of the matter.
Another example rebutting the scam "privacy" argument concerns, e.g., tardiness, late showing up for work. It is definitely a "privacy" matter whether an employee sets an alarm clock or otherwise does or does not arrange to get up on time to arrive at work on time!! or chooses a slow means of transportation to get to work. Challenge the "privacy" claimant: Can an employer object to lateness?! due to the off-duty, "private" decisions involved? Must an employer tolerate privacy-related chronic lateness??!!
| Smoking is a medically recognized form of intoxication, the same concept as in alcoholism. Employers are negligent to hire such people when the intoxication is foreseeable, as this type intoxication is, in view of the centuries of medical data so establishing.
Because tobacco use is an intoxication, tobacco users — whether the use occurs on or off the job — thereafter display typical intoxicated-persons symptoms, including but not limited to impaired reasoning, distorted judgment, higher accident rate, dangerousness, etc., as medical research has long established.
". . . the immediate effect of smoking . . . is a lowering of the accuracy of finely coordinated reactions (including associative thought processes)."—John H. Kellogg, M.D., LL.D., F.A.C.S., Tobaccoism, or, How Tobacco Kills (Battle Creek, MI: The Modern Medicine Publishing Co, 1922), p 88.
Peter H. Knapp, M.D., et al, in Am J Psychiatry, Vol. 119, Issue # 10, pp 966-972 (April 1963) (Smokers' typical brain-damage symptoms include "distorted time perception"; smokers "spoke about time moving slowly"; smokers showed "marked denial of concern . . . about any dangers associated with tobacco" showing impaired self-defense reflex ability to comprehend future consequences of current actions, e.g., current smoking's future effects).
Dr. William M'Donald, in The Lancet Vol. 1, Issue # 1748, page 231 (28 Feb 1857) ("no smoker can think steadily or continuously on any subject. . . . He cannot follow out a train of ideas.")
Both the government and the American Psychiatric Association have issued reference books listing smoking in separate classifications for its mental effect—meaning, as a "mental disorder," in the International Classification of Disease, 9th ed. (ICD-9), p 231, and the Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. (DSM-III), pp 159-160 and 176-178. Tobacco causes brain damage, is called "Tobacco Organic Mental Disorder" (TOMD). The Manual includes smokers in the TOMD category if withdrawal symptoms occur within 24 hours (most smokers have symptoms in two hours).
The Surgeon General's colleagues say that if the public knew smoking's severe mental effects, making it not a habit but worse (a mental disorder), that fact becoming publicly known (instead of censored as it is) would have a major impact on the public's perception of smokers ("a profound effect upon the reputation of this behavior")! See the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p 5 (December 1977), quoting Murray E. Jarvik, M.D., Ph.D.
Intoxicants do not discriminate; they do not vary their effects according to the location of use!
You may have heard of so-called "smokers' rights" laws. Such laws are in fact economy-sabotage laws, competitiveness-destroying, junk science laws. They are contrary to centuries of science and medical fact. They are on the order of a flat earth law.
Additionally, such laws are unconstitutional as they violate the constitutional right of coworkers to life, and violate the constitutional and federal law duty detailed in National Realty, supra, to provide safe workers and workplaces including a safe-hiring policy. Employers did not used to be obstructed on this subject, e.g., Thomas Edison and others refused to hire smokers.
A note for Michigan readers: A decade ago, then Gov. John Engler vetoed the unconstitutional and junk science bill that had been sent him by pandering legislators. [See example at www.freep.com/news/statewire/sw111089_20050202.htm.] Thanks to then Gov. Engler, Michigan does not have a so-called "smokers' rights law." Whatever may be felt about him on other issues, Gov. Engler's wisdom on this subject is sorely missed.
Note that pandering legislators typically ignore genuine "smokers' rights," the right to a safe product and to sue pushers. Instead, pandering politicians often try to sabotage and obstruct such genuine "smokers' rights" by passing so-called "tort reform" laws. Note, and avoid, Michigan's bad example on this. Michiganites like to talk about being competitive, like to whine about high health care costs adversely impacting business, jobs, taxes. Some in Michigan like to say, gotta help business save a buck an hour by keeping minimum wage low! But let someone try to actually cut a portion of the mega-billions of health care costs by targeting the No. 1 cause (smoking by smokers), you'll be amazed at the stream of denunciation and myths (smoking is a right, a privacy matter, not a job impairment, etc., etc.!!) that are immediately spewed! Do Michiganites really want their state to be competitive? or just talk about it?!
Note to other readers: Where the media and politicians are hostile to competiveness, and even denounce pro-active tobacco-related cost containment, be aware of such folly. When a state or jurisdiction sabotages its own competitiveness on this point, actually works to drag its own economy down, that's opportunity for you in another jurisdiction. |
As a competitiveness matter, European employers are coming to realize significance of not hiring smokers. See, for example, Jeffrey Iverson, "European employers may fire workers for smoking at home" (TIME Europe magazine, 21 August 2006): "A European Commission ruling says that employers can sack workers who light up--even if only out of office hours."
To be competitive, American employers need to act fast, stop hiring smokers, and fire the ones they have. So-called "tobacco cessation programs" are, like the drug-testing scam, a welfare program. Avoid the costs of such, don't hire them in the first place.
Fortunately, the new federal law, the Affordable Care Act, motivates employers to start caring about the health care costs that smokers have been pushing off onto nonsmokers for so long. See the article by Shannon Green, Corporate Counsel, “Employers May Avoid Hiring Smokers as Health Care Reform Kicks In" (6 September 2012) (“Under a provision of the ACA, smokers can be charged up to 50 percent more than nonsmokers for health insurance. John Banzhaf, a public interest law professor at George Washington University Law School, says the surcharge is necessary to keep employers and nonsmokers from having to bear the medical costs smokers impose on the health care system. “It’s very unfair not to do something about it,” he says. Citing a 2011 survey by the Kaiser Family Foundation, Banzhaf says premiums for employer-sponsored coverage averaged just over $5,000 annually for an individual. Every employee who smokes, he says, costs the employer more than $10,000 in additional expenses that are 'totally unnecessary.' Although only anecdotal evidence is available, some employers are deciding that the best way to avoid such costs is to not hire smokers at all.”
There are many precedents on firing smokers for smoking. Examples of cases of firing smokers for smoking after they have been hired, include but are not limited to the following:
Cases on Businesses, Etc.
Firing Smokers for Smoking
|
School Dist of Ft. Smith v Maury, 53 Ark 471; 14 SW 669 (25 Oct 1890) (issue of discharging teacher for smoking)
Columbian Rope Co v United Farm Equipment and Metal Workers, 7 Lab Arb (BNA) 450 (NY, 2 June 1947)
Standard Oil Co v Central States Petroleum Union, 19 Lab Arb (BNA) 795 (Ill, 13 Dec 1952)
Cit-Con Oil Corp v Oil, Chemical & Allied Workers International Union, 30 Lab Arb (BNA) 252 (Louisiana, 26 Feb 1958)
U.S. Industrial Chemical Co v International Union of Operating Engineers, 64-2 Lab Arb Awards (CCH) § 8481 (Ill, 5 March 1964)
Caraco Ship Supply v Amalgamated Meat Cutters and Butcher Workmen of North America, 64-3 Lab Arb Awards (CCH) § 8961 (Calif, 12 Aug 1964) (permissive supervisor had permitted employees to smoke; he was then fired; the firing was upheld)
U.S. Powder Co, Division of Commercial Solvents Corp v International Union of District 50, United Mine Workers of America, 67-2 Lab Arb Awards (CCH) § 8454 (Ill, 26 July 1967)
Ward Furniture Mfg Co v United Furniture Workers of America, 68-2 Lab Arb Awards (CCH) § 8702 (Ark, post-Feb 1968)
Royce Chemical Co v Oil, Chemical and Atomic Workers International Union, 70-1 Lab Arb Awards (CCH) § 8138 (NJ, 10 Oct 1969)
U.S. Plywood-Champion Papers, Inc, Del-Mar Industries Division v International Woodworkers of Am, 70-1 Lab Arb Awards (CCH) § 8340 (Ga, 22 Jan 1970)
A. E. Staley Mfg Co v International Union, Allied Industrial Workers of Am, 71-1 Lab Arb Awards (CCH) § 8203 (Ill, 27 Feb 1971)
Hercules Inc v International Chemical Workers, 74-2 Lab Arb Awards (CCH) § 8487 (11 Oct 1974)
Illinois Fruit & Produce Corp v International Bro of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 66 Lab Arb (BNA) 498 (28 Jan 1976)
Wisconsin Steel Coal Mines of International Harvester Co v Progressive Mine Workers of America, 76-2 Lab Arb Awards (CCH) § 8348 (17 April 1976)
Gladieux Food Service v International Ass'n of Machinists and Aerospace Workers, 70 Lab Arb (BNA) 544 (Penn, 1 March 1978) (a case with implications for both employers and travelers, contractor food services employee fired for smoking within short distance of passenger plane during or shortly after the refueling process)
Bostik West, Division of USM Corp v Oil, Chemical and Atomic Workers International Union, 78-2 Lab Arb Awards (CCH) § 8545; 71 Lab Arb (BNA) 954 (Calif, 1 Nov 1978)
Consolidation Coal Co, Robinson Run Mine, Jones Run Portal v United Mine Workers of Am, 82-2 Lab Arb Awards (CCH) § 8600 (W Va, 9 Sep 1982)
Olin Corp, McIntosh Plant v International Ass'n of Machinists, 83-2 Lab Arb Awards (CCH) § 8521; 81 Lab Arb (BNA) 644 (Alabama, 29 Sep 1983)
Golden v Communication Technology Corp, 36 E.P.D. § 35,095; 1985 WL 1102 (ND Ga, 30 Jan 1985)
Moore v Inmont Corp, 608 F Supp 919; 39 FEP Cas (BNA) 1382; 38 EPD ¶ 35,699 (WD NC, 4 April 1985)
Crockett v Eckerd Drugs of North Carolina, Inc, 615 F Supp 528; 52 FEP Cas (BNA) 852 (WD NC, 16 Aug 1985)
Grusendorf v City of Oklahoma City, 816 F2d 539; 1987 US App LEXIS 5133; 55 USLW 2588; 2 Indiv.Empl.Rts.Cas. (BNA) 51 (CA 10, 17 April 1987) ("We need look no further . . . than the [15 USC § 1333] Surgeon General's warning on the side of every box of cigarettes sold in this country that cigarette smoking is hazardous to health," thus upholding firing smokers for endangering themselves by smoking.)
ADM/Growmark River Systems, Inc v Int'l Longshoremen's Ass'n, Local 1765, 99 Lab Arb (BNA) 1033 (Missouri, 21 Aug 1992)
Century Products Co v Internat'l Ass'n of Machinists, District No. 28, 101 LA (BNA) 1 (16 April 1993) (smoker carrying cigarette on "automatic pilot" is not a defense, no distinction from, carrying it consciously in violation of the rule)
Robertson v Fiore and Hudson County Improvement Authority, 62 F3d 596; 1995 WL 486415
(CA 3, NJ, 16 Aug 1995) (business fired smoker on charges including endangering the facility by his smoking)
Stevens v Inland Waters, Inc, 220 Mich App 212; 559 NW2d 61 (22 Nov 1996) (smoking is not a protected handicap, so smoker can be fired, cigarettes are illegal in Michigan)
Clark County School District v Education Support Employees' Ass'n, 108 LA (BNA) 1125 (13 May 1997) (school bus driver discharged for allowing children to smoke on bus, and other misconduct)
Town of Plymouth v Civil Service Commission and Rossborough, 426 Mass 1; 686 NE2d 188; 1997 Mass LEXIS 373 (20 Dec 1997)
In the Matter of the Claim of Karen M. Kridel and Commissioner of Labor ex rel. Dibble & Miller, PC, 54 App Div 3d 465; 863 NYS2d 208 (Albany, 7 August 2008) (discharge for taking unauthorized breaks, unemployment compensation denied as "knowingly violating an employer's established policies and procedures has been held to constitute disqualifying misconduct")
See also suspension precedents, infra.
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The above smoker-discharge cases involved smokers who were hired, then fired for smoking. Employers can also take pre-emptive action, as Thomas Edison did in 1914, as Dr. William H. Allen and H. S. Gray said in 1909, refuse to hire smokers in the first place, as
Emile F. Decroix had recommended decades earlier (cited, 1882), and
Frech and Higley, 1916.
Court cases on not hiring smokers include
- City of North Miami v Kurtz, 653 So 2d 1025; 66 EPD ¶ 43,537; 63 USLW 2675; 1995 WL 231185; 20 Fla L Weekly S 170; 10 IER Cases (BNA) 865; 10.3 TPLR 2.73 (Fla, 20 April 1995) cert den 516 US 1043; 116 S Ct 701; 133 L Ed 2d 658 (8 Jan 1996) (city smoker-hiring ban regulation upheld); and
- Fortunoff Fine Jewelry & Silverware, Inc v New York State Division of Human Rights, 227 App Div 2d 557; 642 NYS2d 710; 8 NDLR ¶ 74; 11.5 TPLR 2.176 (20 May 1996) (private employer 'no smokers' policy upheld).
See also Stevens v Inland Waters, Inc, 220 Mich App 212; 559 NW2d 61 (1996), an employment case wherein the employer alleged a rights violation by his employer with respect to his smoking. The Michigan Court of Appeals sustained, agreed with, the employer that smoking is not a qualifying "handicap."
| By not hiring smokers in the first place, one avoids getting into the situation of a subsequent firing for smoking, being deemed wrongful or a pretextual reason, NLRB v Bradford Dyeing Assoc'n, 310 US 318; 60 US 918; 84 L Ed 1226 (20 May 1940). |
"Working and smoking don't mix," says William A. Weis, Ph.D., C.P.A., in “Profits up in Smoke,” 60 Personnel Journal (#3) 162-165 (March 1981). Eliminating smoking serves to reduce personnel costs 20%; insurance premiums 30%; maintenance charges 50%; furniture replacement 50%; disability payments 75%. Smokers are “ . . distinguishable by high rates of absenteeism, early mortality and low productivity . . .” (p 165).
See also “Business Costs in Smoke-Filled Environments” (June 2004), citing 21 references on smoking related absenteeism and lost productivity, and increased maintenance and insurance rates.
Guidance on not hiring smokers was published in The Smoke-Free Workplace by William L. Weis and Bruce W. Miller (NY: Prometheus Books, 1985), pages 101-106. It cites court precedents such as Spencer v Toussaint, 408 F Supp 1067 (ED Mich, 1976). Reason: As alluded to above, smoking is listed in the International Classification of Diseases (1980), p 231, as "tobacco use disorder" in the "mental disorders" section. Smoking has been listed in the "organic mental disorders" section of the Diagnostic and Statistical Manual of Mental Disorders since 1980. Spencer "ruled that excluding people with a history of mental illness is not unreasonable." The most basic job requirement is that the worker be sane! As implicit in the psychiatric literature, a person who sucks poison clearly is not! Sane people recoil in horror at the notion of ingesting poison, and typically prosecute people who would attempt to poison them.
What happens is organic, i.e., a "severe depletion of key cells in the brain." See data from Dr. Wayne Drevets, University of Pittsburgh; Dost Ongur, Washington University; and Joseph L. Price, Professor of Anatomy and Neurobiology, St. Louis.
"Anywhere from 40 percent to 90 percent of glial cells—the brain's support cells—were gone."
Such cells are needed to "provide growth factors and nutrients to neurons."
The observed brain damage occurs "in the prfrontal cortex called the anterior cingulate."
Another observed effect is "a signficant decrease in blood flow in this region."
"The anterior cingulate has been associated with emotional processing, specifically how a person decides whether a certain behavior, thought or feeling will be rewarding. People with mania, for instance, can be impulsive. One theory is that they don't know what effect their behavior may have on themselves or others, Drevets said." [See anosognosia data.]
"[G]lial cell loss contributes to the loss of brain volume noted on brain scans, causing an abnormality in the brain's ability to process emotional tone."
Emphasizing the need for prevention, as per the Iowa 1897 example law, data showed that "anywhere from 40 percent to 90 percent of glial cells—the brain's support cells—were gone [and the brain damage] condition "'didn't go away with treatment . . . something in the anatomy was causing the problem.'"—Jamie Talan, Newsday, "Missing Cells Tied to Depression," The Detroit News (27 Oct 1997), p 2E.
Addicts, the brain-damaged, are going to behave like addicts, like brain-damaged people, so thus must not be hired in the first place.
See also the precedent of Doe v Region 13 Mental Health Retardation Commission, 704 F2d 1402 (CA 5, 1983) reh den 709 F2d 712 (CA 5, 1983) (denying employment to a suicidal counselor; note that suicide is 90% by smokers).
Another in a long line of cases denying smokers' rights on the job, is the case of MacDonald v Michigan State of Bureaucracy, 911 F2d 733 (CA 6, WD Mich, 23 Aug 1990). There, the court dismissed a smoker's discrimination case.
". . . the immediate effect of smoking . . . is a lowering of the accuracy of finely coordinated reactions (including associative thought processes)."—John H. Kellogg, M.D., LL.D., F.A.C.S., Tobaccoism, or, How Tobacco Kills (Battle Creek, MI: The Modern Medicine Publishing Co, 1922), p 88.
Peter H. Knapp, M.D., et al, in Am J Psychiatry, Vol. 119, Issue # 10, pp 966-972 (April 1963) (Smokers' typical brain-damage symptoms include "distorted time perception"; smokers "spoke about time moving slowly"; smokers showed "marked denial of concern . . . about any dangers associated with tobacco" showing impaired self-defense reflex ability to comprehend future consequences of current actions, e.g., current smoking's future effects).
Dr. William M'Donald, in The Lancet Vol. 1, Issue # 1748, page 231 (28 Feb 1857) ("no smoker can think steadily or continuously on any subject. . . . He cannot follow out a train of ideas.")
Both the government and the American Psychiatric Association have issued reference books listing smoking in separate classifications for its mental effect—meaning, as a "mental disorder," in the International Classification of Disease, 9th ed. (ICD-9), p 231, and the Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. (DSM-III), pp 159-160 and 176-178. Tobacco causes brain damage, is called "Tobacco Organic Mental Disorder" (TOMD). The Manual includes smokers in the TOMD category if withdrawal symptoms occur within 24 hours (most smokers have symptoms in two hours).
The Surgeon General's colleagues say that if the public knew smoking's severe mental effects, making it not a habit but worse (a mental disorder), that fact becoming publicly known (instead of censored as it is) would have a major impact on the public's perception of smokers ("a profound effect upon the reputation of this behavior")! See the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p 5 (December 1977), quoting Murray E. Jarvik, M.D., Ph.D.
Ability to perform the job, all jobs, requires sanity, and not endangering self, others, and property. Sanity is a basic minimum job requirement! Smoking is not just a regular mental disorder, but a dangerous one, an "ultrahazardous" one, one that renders the person dangerous to himself, others, and property, e.g., via fires and by massive, constant violation of the "right to fresh and pure air." Smokers kill many nonsmokers yearly, by heart disease, lung cancer, drunk driving, SIDS, abortion, etc., some estimates range as high as 50,000. (By contrast, the annual number of murders ranges around 20,000).
By law, 29 USC § 651 - § 678 (the Occupational Safety and Health Act), employers are ordered to proactively promote job safety, including via not hiring foreseeably dangerous applicants. The mandate is proactive, not reactive. It is well-established that employers are required to assure that everyone in the workplace, including workers, behave and function in a safe manner. Workplaces are to be "free of a hazard." The word "free" is an absolute adjective describing what workplaces must be. Making places "free" of hazards is thus declared to be reasonable.
Here is an example of what happens when a work place is not free of hazardous coworkers. Teacher Magaw got TTS-caused throat cancer. See the case of Magaw v Middletown Bd of Education, 323 N J Super 1; 731 A2d 1196 (2 July 1999) cert den 1999 NJ LEXIS 1522 (5 Nov 1999). This is a worker compensation case, where the nonsmoker got cancer from TTS from a smoker coworker, as he was exposed to 46,800 cigarettes due to sharing an office with the smoker coworker. The case cites some of the medical research data on the subject of the TTS danger to nonsmokers.
As federal law orders employers to pro-actively assure job safety, so-called state "smokers' rights" laws are thus in direct contradiction. Courts have routinely ruled that state laws cannot conflict with and be contrary to federal supremacy. (Noter also that such states laws are "junk-science" based, like a flat earth law, and are thus unconstitutional.)
Here is an example of one aspect of smokers' typical mental disorder -- acalculia / dyscalculia (impaired ability to comprehend and act on basic mathematical data, whether acquired on or off the job). Cigarettes emit 42,000 parts per million (ppm) of carbon monoxide, whereas the safely law, via 29 CFR § 1910.1000, bans above 50 ppm average. Nonsmokers typically obey 29 CFR § 1910.1000 with no problem. Smokers don't and can't. Smokers' acalculia / dyscalculia means that they cannot even comprehend that the number 42,000 is so ultra far above the 50 limit. Smokers' dyscalculia / acalculia means that they cannot comprehend that they are regularly violating the rule; hence, they regularly endanger themselves and others. They spew high levels of toxic chemicals into the air of their co-workers, for example. By federal law, 29 USC § 651 - § 678, employers must "prevent and suppress" that. Prevention means, don't hire the foreseeably dangerously mentally disordered person, whether the danger is to himself, others, or property.
See example of a hospital policy against hiring smokers (November 2010).
And the "don't hire smokers" policy is becoming international, for example, Bulgaria (25 August 2012).
Smokers' dyscalculia / acalculia also means that they cannot comprehend that their being on the rolls increases health care and worker compensation costs, due to their higher sickness and accident rates. (Explanation of smokers' mental disability symptoms includes impaired ability "to think steadily or continuously on any subject [and] follow out a train of ideas. Inability to think linearly inherently impairs job performance. Smokers foreseeably obstruct employer health-care cost reduction, by inability to comprehend their role in causing the increased costs. Smokers are typically in denial about tobacco role in causing adverse effects. They may thus tirade about "invasion of privacy" due to the combination of their inabilities, including the acalculic inability to comprehend the bottom line to employers, increased costs.
Whether acquired on or off the job, smokers suffer from and display impaired reasoning, a fact reported medically as long ago as 1857. Note also smokers' intoxication. It is improper, indeed, negligent, to have an intoxicated person on the job, even though the intoxication is a lingering effect of acquiring the intoxication off the job. (State smokers' rights laws disregarding the residual effects of smokers' intoxication, brain damage, mental disorder, and symptoms thereof, are based on "junk science," and are therefore unconstitutional. They of course also violate the herein cited federal OSHA law principles.)
The expenses that smokers cost via increased health insurance, fires (including killing firemen trying to put out the fires), job time wasted, etc., etc., is enormous. This writer authored the first paper to show that tobacco effects cost the U.S. over $130 billion that year alone. See "Are You Missing $omething?" in Smoke Signals, Vol 26, p 4 (October 1980). Back then, tobacco apologists were falsely alleging that tobacco is a cost benefit to society. This writer, by that analysis, ended that disinformation once and for all. Now everyone, tobacco companies and Attorneys General both, agrees that tobacco costs society in the hundreds of billions, via the recent settlement in process. This writer's analysis that went to the public, not merely to a limited-circulation scjolarly journal, led the way to changing this widespread erroneous attitude.
In other papers, this writer has further elaborated the danger that smokers pose, and the mandatory legal duty employers have, to not allow it. See "Smoking as hazardous conduct," in New York State Journal of Medicine, Vol 86, p 493 (Sep 1986); "[Indoor Air Quality] Already Regulated," Indoor Air Review, Vol 3, p 3 (April 1993); and "Alternative Models for Controlling Smoking among Adolescents," American Journal of Public Health, Vol 87, pp 869-870 (May 1997).
Smokers are dangerous and injure or kill (whether by toxic chemicals or fire) themselves, coworkers and others on the job. Example of cases on the subject include but are not limited to the following:
Dangerous Smoker Cases|
Whiting-Mead Commercial Co v Industrial Accident Com'n, 178 Cal 505; 173 P 1105 (1918)
Keyser Canning Co v Klots Throwing Co, 94 W Va 346; 118 SE 521 (1923) (smoker-caused fire case)
Employee Tiralongo v Employer Stanley Works, 104 Conn 331; 133 A 98 (1926)
Employee Lovallo v Employer American Brass Co, 112 Conn 35; 153 A 783 (1931)
Maloney Tank Mfg Co v Mid-Continent Petroleum Corp, 49 F2d 146 (CA 10, 30 March 1931) (details)
Triplett v Western Public Service Co, 128 Neb 835; 260 NW 387 (1935)
Jones v Eastern Greyhound Lines, Inc, 159 Misc 662; 288 NYS 523 (1936) (travelers' rights case)
McKinney v Bland, 188 Okla 661; 112 P2d 798 (1941)
Employee Puffin v General Electric Co, 132 Conn 279; 43 A2d 746 (1945)
Petition of the Republic of France, 171 F Supp 497 (D SD Tex, 1959) aff'd 290 F2d 395 cert den 369 US 804; 82 S Ct 644; 7 L Ed 2d 550 (1962)
Commonwealth v Employee Hughes, 468 Pa 502; 364 A2d 306 (1976)
Employee Donna Shimp v Employer New Jersey Bell Telephone Co, 145 N J Super 516; 368 A2d 408 (1976) (Injunction Text)
Wilhelm v Globe Solvent Co, 373 A2d 218 (Delaware, 17 March 1977) (coworker's smoking caused fire and resultant injury)
Employee Ellen L. Meyer v Employer and State of Idaho Dep't of Employment, DoE 615-78 (17 Nov 1978)
Employee Anderson v Employer Anoka County Welfare Board, Case No. 4-79 Civ 269 (D Minn, 1981)
Employee Vickers v Veterans Administration, 29 FEP Cases 1197; 30 E.P.D. 27,352; 549 F Supp 85 (D Wash, 1982)
Employee Paul Hentzel v Singer Co, 138 Cal App 3d 290; 188 Cal Rptr 159 (1982)
Employee McCrocklin v Employer and Calif Dep't of Employment, 156 Cal App 3d 1067; 205 Cal Rptr 156 (1984)
Employee Marie Lee v Employer Dep't of Public Welfare, # 15385, 11 Mass Lawyers Weekly 1190 (31 May 1983)
Employee Lauren Hall v Employer Sisters of Mercy Health Corp, Deaconess Hospital, Case No. 80-031-746 (Wayne County Circuit Court, Mich, 2 Oct 1983)
Employee Lauren Hall v Veterans Admin, EEOC No. 054-086-X0097 (Detroit, Mich, 5 Sep 1986)
Employee Leonard A. Perkins v Employer Ford Motor Co, Case No. 86-633018 CZ (Wayne County Circuit Court, Mich, 25 Nov 1986).
Broin v Philip Morris Cos, Inc, 19 Fla L Weekly D588; 641 So 2d 888 (Fla App, 15 March 1994) rev den 654 So 2d 919 (Fla, 3 April 1995) (class action case re second-hand smoke injury to workers (stewardesses)
Portneir v Republic Hogg Robinson, et al, No. BC 028990, 9.1 TPLR 3.30 (Los Angeles Superior Court, 1 March 1991) (issue of smoker assaulting nonsmoker with TTS)
Faragher v City of Boca Raton, 524 US 775; 118 S Ct 2275; 141 L Ed 2d 662 (CA 11, Fla, 26 June 1998) (on-job sexual harassment case, employer vicariously liable, comparable to smoking-on-job as courts develop more understanding)
Duncan v Northwest Airlines, Case No. 98-35617 (CA 9, Wash, 6 April 2000) (flight attendant second-hand smoke pulmonary injury case) cert den US S Ct, L Ed 2d, Case No. 00-404 (10 Dec 2000)
Pollard v E. I. du Pont de Nemours & Co, Case No 763; US; S Ct; L Ed 2d (CA 6, Tenn, 4 June 2001) (unlimited front pay allowed for demeaned, ostracized, harassment victims—as smokers are disproportionately perpetrators, employers have another reason to not hire them)
Prosecutor of Italy v Paribas Bank Executives (Italy, 5 March 2002) (manslaughter charges upheld against supervisors, for allowing smoking by woman's co-workers, killing her) (Details at La Stampa) (case applies the 'taking victims as come' precedents)
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There is another tobacco harm / smoker dangerousness aspect in this overall "ultrahazardous activity" that is often overlooked, and that is with respect to its role in drug abuse and crime. Just as 90% of lung cancer is by smokers, so also 90% of criminals are smokers. See McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1991).
The tobacco-crime link has been known in the profession since Dr. William Alcott's 1836 reference, and cited many times, by, e.g. , Hodgkin (1857); Buckley and Trask (1860); Ellis (1901); Lindsay (1914); Torrance (1916); Blum (1924); Danis (1925); Healy and Bonner (1926); Crane, Dawson, Pollock, and Shaw (1931); Wood (1944); etc.
"Nowhere is the practice of smoking more imbedded than in the nation's prisons and jails, where the proportion of smokers to non-smokers is many times higher than that of society in general." Doughty v Board, 731 F Supp 423, 424 (D Col, 1989).
"Nationwide, the [ratio] of smokers [to non-smokers] in prisons is 90 percent." McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1991), affirmed and remanded, 509 US 25; 113 S Ct 2475; 125 L Ed 2d 22 (1993).
The reason for the tobacco-crime link is that tobacco is the gateway (starter) drug with youngest age of onset (12). It is the drug that initiates youth into the drug lifestyle. See Fleming et al., "The Role of Cigarettes in The Initiation and Progression of Early Substance Use," Vol 14, Addictive Behaviors, pp 261-272 (1989). Nonsmokers are rarely drug abusers or in prison; when they are, it is (as with for example lung cancer), an exception, about at the 10% rate.
In 1889, doctors reported to the Michigan House of Representatives about cigarettes causing insanity, and cited symptoms re which modern terminology would be to the effect of psychopathology, abulia, impaired ethical and impulse controls, which is how smoking leads to crime.
A century later, in 1992, MI Gov. John Engler on 16 December 1992 vetoed a 'smokers' rights" bill.
See also the case of Palmer v Keene Forestry Assn, 80 NH 68; 112 A 798 (1 Feb 1921). An outdoor fire had occurred caused by smoking. The New Hampshire Supreme Court refers to smokers being "addicted to the use of cigarettes," so much that they caused a fire that destroyed a building owned by Palmer. The court ruled in favor of Palmer, and held the defendant liable for the damages as "chargeable with the knowledge that ordinarily prudent men would possess upon this subject," i.e., that smoking is well-established to be addictive and that harm can result from the mental effects including fire-setting behavior. The case is noteworthy for citing as applying to smoking, a precedent of a drunk worker, wherein the employer was chargeable to know the impact of that behavior pattern on the person's work quality, Curtis v Laconica Car Works, 73 NH 516; 63 A 400 [6 March 1906])
The U.S. Supreme Court knows. Four decades ago, it said: "The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway," in Robinson v California, 370 US 660; 82 S Ct 1417; 8 L Ed 2d 758 (1962).
The tobacco-crime link initiated in children and continuing into adulthood is so well-established 1836-present that Michigan banned adulterated and deleterious cigarettes by law in 1909. See also other almost-unknown-to-laymen tobacco correlatives, including alcoholism, suicide, divorce, AIDS, etc.)
As the population base that forms 90% of the criminals consists of smokers, employers must take care to not hire from that population base. Hiring foreseeably dangerous people is clearly forbidden by the above-cited line of case law declaring it to be negligence for an employer to hire someone who is dangerous. Why should an employer hire from that smaller population base (smokers) that produces 90% of the criminals, when it can choose from the much larger applicant base/group (nonsmokers) that produces only 10% of them?
Smokers' exposure to massive, "ultrahazardous" quantities of toxic chemicals leads to another mental disorder, abulia. This leads them, at a substantially higher rate than nonsmokers, into deviant behaviors such as alcoholism, promiscuity, HIV-type behaviors, drunk driving, abortion, non-seat-belt wearing, causing SIDS in infants, divorce, and suicidal behaviors. (Journal citations for most of the foregoing are at the websites cited).
By law, employers are not allowed to hire people so dangerous to themselves and others. Employers should not hire persons whose standards (due to abulia and anomie) are so deviant from societal/employer norms, and laws even.
If you are an employer trying to follow the above-cited principles, don't let yourself be pressured or scammed by disinformation types posing as "privacy advocates" or the media, into misplacing the real emphasis: We can't hire smokers. Not: employees can't smoke. Your emphasis is, you can't have the collection of traits that are characteristic of smoking. If you are to remain competitive, you must control costs. You are in fact controlling costs, not people.
"Most of the nation’s approximately 16.4 million current illicit drug users and approximately 15 million heavy alcohol users hold full-time jobs, according to a new study by the Substance Abuse and Mental Health Services Administration (SAMHSA), "Worker Substance Use and Workplace Policies and Programs" (16 July 2007). In a summary, Director of National Drug Control Policy John Walters said, "Employees who use drugs miss work more often, are less healthy, and are more prone to harming themselves and others in the workplace. We hope that employers will take note of this report and consider implementing workplace drug testing policies that can help prevent drug use before it starts, help identify drug-using employees who need drug treatment services and also reduce employers’ liability from drug-related workplace accidents."
When employers hire starter drug users, naturally "the percentage of positive urine drug tests in the workplace is up. According to the recently revealed 2013 results of the Quest Diagnostics Drug Testing Index, which reports positivity rates from millions of employee drug tests, positives have increased 5.7 percent from 2012," says Rebekah Mintzer, "
Rise in Drug Test Positives Poses Problems for Business" (CorporateCounsel, 14 October 2014)
An efficient way to "prevent drug use before it starts"is to ban the starter drug delivery agent, tobacco, and at mimimum to not hire starter drug users, aka tobacco users. Avoid negligent hiring, don't hire smokers.
But if you do hire tobacco users, be aware that when an employer fails to enforce safety (e.g., fails to discharge an employee drug-users), and a "natural and probable consequence" such as death results, criminal charges are foreseeable, as per cases won by prosecutors including, e.g., People v Hegedus, 432 Mich 598; 443 NW2d 127 (1989); and People v Chicago Magnet Wire Corp, 126 Ill 2d 356; 128 Ill Dec 517; 534 NE2d 962 (1989), cert den sub nom Asta v Illinois, 493 US 809; 110 S Ct 52; 107 L Ed 2d 21 (1989) (and wrongful death lawsuits).
Smokers' remedy is not to dispute with employers, but with legislators who refuse to follow Iowa's, Tennessee's and Michigan's example and ban adulterated and deleterious products such as cigarettes. (Nobody [except the pushers] would have a quarrel with safe cigarettes, if any). (Smokers can also file a smokers' rights case against tobacco companies. Suing their pushers, not their employers, is real "smokers' rights.")
In conclusion, pursuant to the above referenced data, action and commitment to proper hiring practices (including avoiding negligent hiring of smokers) is commendable, indeed, it is the law.
Also Recommended Reading
Daniel M. Berman, Death on the Job: The
Politics of Occupational Health in the United States
(San Francisco: Medical Committee for Human Rights, 1974)
Right of Employee to Injunction Preventing Employer
From Exposing Employee to Tobacco Smoke In Workplace
37 ALR4th 480 (1985)
Plant and Job Safety—OSHA and State Laws
61 Am Jur 2d, §§ 1-130
Workmen's Compensation: Compensation
to Workmen Injured Through Smoking,
5 ALR 1521 (1920)
Liability of Master for Damage to
Person or Property Due to Servant's Smoking,
13 ALR 997 (1921)
Master's Liability for Injury to or Death of Person,
or Damage to Property, Resulting from Fire
Allegedly Caused by Servant's Smoking,
20 ALR 3d 893 (1968)
J. D. Blackburn,
"Legal Aspects of Smoking in the Workplace,"
31 Labor Law J 564-569 (Sept 1980)
M. Cochran,
"The Worker's Right to a Smoke-Free Workplace,"
9 Univ of Dayton Law Rev 275-295 (Winter 1984)
N. Blodgett, "The New Outlaws: Smokers Who Light Up at Work,"
72 ABA Journal 31 (Feb 1986)
M. A. Rothstein,
"Refusing to Employ Smokers: Good Public Health or Bad Public Policy?"
62 Notre Dame Law Rev 940-968 (Winter 1987)
E. M. Crocker, "Controlling Smoking in the Workplace,"
38 Labor Law J 739-746 (Dec 1987)
Employer's Liability to Employee for Failure
to Provide Work Environment Free from Tobacco Smoke,
63 ALR 4th 1021 (1988)
Ryder v United States, 515 US 177; 115 S Ct 2031; 132 L Ed 2d 136 (1995)
(in litigation, a party can challenge validity of adjudicator's appointment).
D. J. Howard, R. B. Ota, L. A. Briggs, M. Hampton, and C. A. Pritsos.
"Environmental tobacco smoke in the workplace induces oxidative stress
in employees, including increased production of 8-hydroxy-2'-deoxyguanosine."
Cancer Epidemiol Biomarkers Prev. 1998 Feb;7(2):141-6.
D. J. Howard, L. A. Briggs, and C. A. Pritsos. "Oxidative DNA damage
in mouse heart, liver, and lung tissue due to acute side-stream tobacco
smoke exposure."
Arch Biochem Biophys. 1998 Apr 15;352(2):293-7.
A. C. Collier and C. A. Pritsos, "Environmental tobacco smoke
in the workplace: markers of exposure, polymorphic enzymes
and implications for disease state."
Chem Biol Interact. 2003 Dec 15;146(3):211-24.
The Website of Weyco Co (2005)
(Parts On Its 'No-Smokers' Policy)
Arbitration and Court Cases on
Suspending Smokers for Smoking
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Baltic Metal Products Co v United Electrical, Radio and Machine Workers of America, 8 Lab Arb (BNA) 782 (NY, 5 Nov 1947) (two weeks)
Curtiss-Wright Corp, Airplane Div v Int'l Union, United Automobile, Aircraft and Agricultural Implement Workers of American, 9 Lab Arb (BNA) 77 (Ohio, 29 Nov 1947) (one week)
Gold-Tex Fabrics Corp, Mill Div v Textile Workers Union of America, Local 925, 32 Lab Arb (BNA) 103 (SC, 24 Jan 1959) (one month)
Haskell Mfg Co, Inc v Int'l Union of Electrical, Radio and Machine Workers, 64-2 Lab Arb Awards (CCH) § 8647 (Penn, 13 May 1964) (thirty days)
Columbus Show Case Co v Sheetmetal Workers Int'l Ass'n, 65-1 Lab Arb Awards (CCH) § 8347; 44 Lab Arb (BNA) 507 (Ohio, 7 April 1965) (two months)
Welby Division of Elgin Nat'l Watch Co v United Packinghouse, Food and Allied Workers, 66-1 Lab Arb Awards (CCH) § 8105 (Ill, 30 Dec 1965) (30 days)
The Columbus Showcase Co v Sheet Metal Workers Int'l Ass'n, 67-2 Lab Arb Awards (CCH) § 8577 (Ohio, 23 Aug 1967) (five weeks)
The Pantasote Co v United Rubber, Cork, Linoleum and Plastic Workers of America, 68-1 Lab Arb Awards (CCH) § 8136 (W Va, 4 Dec 1967) (two months)
Olin Mathieson Chemical Corp, Indiana Army Ammunition Plant v Int'l Chemical Workers Union, 68-2 Lab Arb Awards (CCH) § 8630; 51 Lab Arb (BNA) 97 (Indiana, 3 July 1968) (eleven months)
The Bunting Co, Inc v Upholsterers' Int'l Union of North America, 73-2 Lab Arb Awards (CCH) 8503 (21 Sep 1973) (ninety days)
American Synthetic Rubber Corp v United Cork, Rubber, Linoleum and Plastic Workers of America, 67 Lab Arb (BNA) 603 (Ky, 5 Oct 1976) (ten days)
U.S. Industrial Chemicals Co v Int'l Union of Operating Engineers, 77-1 Lab Arb Awards (CCH) § 8084 (Tuscola, 15 Jan 1977) (4.5 months)
Converters Ink v Chicago Ink Workers, 68 Lab Arb (BNA) 593 (Ill, 17 March 1977) (six months, and saying "There are myriad 'no-smoking' disciplinary cases reported in the arbitration literature . . . One other dimension is lent to the case, however, entirely by the Company's able argument. That is the suggestion that the Grievant, being an habitual smoker [addict] quite possibly committed an involuntary act, and therefore indicated that he is intrinsically unsuitable for employment . . . The Union took up . . . this argument, and suggested that if it is valid, then the Company should not hire smokers in the first place or should discharge all smokers on the theory that they might create a hazard.")
Olympic Stain, Inc (Division of Comerco, Inc) v General Drivers and Dockhands, 77-2 Lab Arb Awards (CCH) § 8383 (Ky, 15 Aug 1977) (six months)
Bollin v Kingston, 89 App Div 2d 658; 453 NYS2d 113 (8 July 1982) (rule upheld, school bus driver suspended for reasons including smoking)
Southwest Forest Industries, Inc v United Paperworkers Int'l Union, 84-2 Lab Arb Wards (CCH) § 8432 (Missouri, 3 Aug 1984) (four months)
North Dakota Mill and Elevator Ass'n v American Federation of Grain Millers, 85-2 Lab Arb Awards (CCH) § 8566 (ND, 1 Sep 1985) (9 months)
Van Waters & Rogers, Inc v Teamsters Local 407, 102 LA (BNA) 609 (15 Dec 1993) (30 day suspension, reduced from removal)
See also removal precedents, supra. |
Examples of Cases Showing That
On-Job Smoking Is Non-Negotiable
As Toxic Tobacco Smoke Is Unlawful
As Per the Common Law "Right to Fresh and Pure Air"
And As TLV's and Laws (Against, e.g.,
Unlawful Deaths and Job Hazards (OSHA TLV's) Are
Not Subject To Being Repealed By A Mere Contract;
In Truth, Only A Total Ban Is Wholly Safe
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United Fuel Gas Co v Oil, Chemical and Atomic Workers Intl Union, 68-2 Lab Arb Awards (CCH) § 8450 (W Va, 18 March 1968) (banning smoking is within employer rights, as safety is of paramount importance)
Dep't of Health, Educ and Welfare, Soc Sec Admin v American Federation of Government Employees, 79-2 Lab Arb Awards (CCH) § 8547 (Calif, 30 Jan 1979)
Sherwood Medical Industries v Retail, Wholesale and Dept Store Union, Local 125, 72 Lab Arb (BNA) 258 (Mo, 16 Feb 1979) (eliminating smoking is upheld as it promotes efficiency of operations and prevents potential fire hazards)
Litton Industries, Litton Microwave Cooking Products Div v United Electrical, Radio and Machine Workers, Local 1139, 75 Lab Arb (BNA) 308 (Minn, 21 July 1980) (management had a duty to obey state law against smoking, plus an additional duty to protect workers from being annoyed or made ill)
Chambersburg Area School District v Com of Pennsylvania PERC, 60 Pa Cmwlth 29; 430 A2d 740; 110 LRRM (BNA) 2251 (12 June 1981) app dism 498 Pa 366; 446 A2d 603 (17 June 1982) (school can ban smoking without negotiating it)
Dept of Health, Educ and Welfare, Social Security Admin v AFGE Local 1923, 82-1 Lab Arb Awards (CCH) § 8206 (22 Jan 1982) (the duty to protect one nonsmoker objecting to others' smoking is mandatory)
United Telephone Co of Florida v IBEW Local 199, 78 Lab Arb (BNA) 866 (31 March 1982) (ban smoking based on the air flow, evidence of health risk from passive smoking, duty to provide a healthy work environment, and minimizing employer expenses and liability)
Schnadig Corp v Upholsterers' Intl Union of No Am, Local 186, 83-1 Lab Arb Awards (CCH) § 8267 (Indiana, 23 April 1983) (safety is a more important consideration, so has priority)
National Archives, 6 FLRA No. 91 (1984) (citing 5 USC 7106(b)(1) Snap-On Tools Corp v IAMAW Lodge 1045, 86-2 Lab Arb Awards (CCH) § 8409 (Iowa, 19 June 1986) (eliminating smoking was upheld as it is not a binding working condition, and elimination has a legitimate business goal, cleanliness)
National Pen & Pencil Co v United Food and Commercial Workers, Local 1557, 87 Lab Arb (BNA) 1081 (Tenn, 25 Oct 1986) ("work time is for work," and eliminating smoking has legitimate business considerations)
Morelite Equipment Co v IBEW Local 56, 88 Lab Arb (BNA) 777 (Penn, 28 Jan 1987) (eliminating smoking is based on management's duty to provide safe working conditions, especially as there might have been one incident of harm from one cigarette)
H-N Advertising & Display Co, Inc v Sheet Metal Workers Intl Assn, Local 503, 88 Lab Arb (BNA) 1311 (1 May 1987) (concern for worker safety justifies a ban, and implementing improved safety measures is a normal management prerogative)
Worthington Foods, Inc v United Industrial Workers, 87-2 Lab Arb Awards (CCH) § 8546; 89 Lab Arb (BNA) 1069 (Ohio, 16 Oct 1987) (ban justified based the fact of the massive publicity on the adverse effects on both smokers and nonsmokers, without even showing a need for specific evidence with respect to that particular employer)
Lennox Industries, Inc v IUUAAAI Workers of America, Local 893, 88-1 Lab Arb Awards (CCH) § 8083; 89 Lab Arb (BNA) 1065 (4 Dec 1987) (employer no-smoking rules are not bargainable)
Des Moines Register and Tribune Co v Des Moines Typographical Union No 118, 88-1 Lab Arb Awards (CCH) § 8154; 90 Lab Arb (BNA) 777 (Iowa, 5 Feb 1988) (management has a duty to provide a safe work place and protect workers from health risks)
Michigan Bell Telephone Co v Communciation Workers of America, 90 Lab Arb (BNA) 1186 (Michigan, 3 May 1988)
Dayton Newspapers v News Employees Ass'n, 91 LA (BNA) 201 (Ohio, 20 July 1988) (distinguishing between personal vs contract rights, rejecting smoking as a contract right, thus upholding smoking ban)
Honeywell Inc v Int'l Ass'n of Machinists & Aerospace Workers, 92 Lab Arb (BNA) 181 (Fla, Melvin Lennard, 3 Jan 1989) (a well-reasoned case, identifying smoking as dangerous to nonsmokers, and not a benefit but a detriment to smokers)
Stove, Furnace and Allied Appliance Workers Int'l v Fedders Air Conditioning USA, 90-1 Lab Arb Awards (CCH) § 8089 (Mo, 22 March 1989)
Wyandot, Inc v United Food & Commercial Workers Int'l Union, 92 Lab Arb (BNA) 457 (14 April 1989) (well-reasoned, cites safety precedents such as the Shimp case.)
Witco Corp v Oil, Chemical & Atomic Workers Intl Union, Local 6-662, 96 Lab Arb (BNA) 499 (Texas, 25 Feb 1991) (management has a right to promulgate reasonable work rules so as to "provide for maximum safety," and no-smoking rule is reasonably related to legitimate management objectives)
Koch Refining Co v Oil, Chemical & Atomic Workers Intl Union, Local 6-662, 99 Lab Arb (BNA) 733 (31 Aug 1992) (smoking ban is valid as it promotes a healthier workforce and protects against fires; the matter is one of rules, not a negotiable working condition; "the problem with designated smoking areas . . . is that people forget because smoking is so automatic, and will leave the designated area for nonsmoking areas with cigarettes.")
Illinois American Water Co v Laborers Local Union 165, 93-1 ARB (CCH) ) § 3240 (Peoria, Ill, 25 Feb 1993) (upheld smoking ban, citing the proactive duty of employers under safety law, to prevent hazards, vs being merely reactive, and rejecting the "smoking is a privilege" argument of smokers being exempt from rules others must obey)
Akron Brass Co v Machinists Lodge 1581, 101 LA (BNA) 289 (23 June 1993) (has history of cases, upheld smoking ban, including scientific-fact reasons, e.g., that TTS is ambient, i.e., lingering in air after smoker leaves. Note the false pro-smoking claim alleging that legal maximums (OSHA TLV's) do not exist to cover the point! You the reader know that legal maximums, TLV's do exist on TTS chemicals.)
Jenkins v Secretary of the Army West, 1995 WL 43711 (U.S. E.E.O.C., 20 January 1995) (affirmed Army decision removing Sheranne Jenkins for instances of misconduct which included permitting smoking at week night bingo events in violation of a smoking ban)
Timkin Co v Steelworkers Local 1123, 108 LA (BNA) 422 (Canton, Ohio, 26 Dec 1996)
USS v Steelworkers Local 9155, 109 LA (BNA) 36 (Minn, 14 July 1997) (smoking ban upheld, smoking is not a "benefit" but a danger)
Mutual Mfg & Supply Co v Teamsters Local 100, 109 LA (BNA) 570 (Cincinnati, Ohio, 1 Aug 1997) (ban upheld, company pointed out that nonsmokers wanted it, and smokers had been causing fires)
Bayer Corp v Chemical Workers Local 566, 110 LA (BNA) 924 (W Va, 29 May 1998) (smoking ban upheld after impasse on scheduling it)
Laws, government-wide regulations, etc. are non-negotiable, not subject to repeal by contract. See, e.g., 29 USC § 141 and 5 USC § 7117(a)(1). Compare West Virginia State Board of Education v Barnette, 319 US 624, 638; 63 S Ct 1178; 87 L Ed 1628 (1943) and Romer v Evans, 517 US 620; 116 S Ct 1620; 134 L Ed 2d 855 (1996) (no vote allowed to repeal constitutional rights).
Employers are also not allowed to negotiate mental disorders (smoking is a medically recognized mental disorder).
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