Light up, lose your job

FULL DISCLOSURE on future cigarette packs may require space for an additional warning: Smoking may cause unemployment.

The issue this time isn’t what you do at the office; smoking has long since been banished to desperate speed-drags outside

the building. It’s no smoking, period, even at home. Some companies now test for nicotine as they do for illegal substances.

Anita Epolito got the word in a company meeting that she would have to submit to a urine test for nicotine. “It was unbelievable, because I truly believed that what you did after 5 o’clock had nothing to do with your job,� said Epolito, then a 15-year employee at Weyco Inc., a health benefits administrator in Okemos, Mich. “I took it as a privacy issue. ‘You will not test me for something that is legal in my own home.’ �

Epolito was fired for refusing to take the test. She took her case to the U.S. Equal Employment Opportunity Commission but learned that in Michigan, as in 19 other states, her employer had the right to dismiss her for off-duty activity.

Weyco and Scotts Miracle-Gro, based in Marysville, Ohio, are in the vanguard of a growing effort by business to brake soaring medical costs by regulating such unhealthy employee behavior as smoking, even if it’s done off-site. Privacy advocates and legal experts call it the opening round of a corporate takeover of personal lives, but company officials defend what they see as a reasonable business decision.

“We don’t want to pay for the risk factors [smoking] creates for us down the road,� said Weyco President Howard Weyers, who pioneered nicotine testing in 2005.

Smokers make an easy target. According to the Centers for Disease Control and Prevention, tobacco users cost a company $3,391 each in lost productivity and medical bills annually, and run up a national healthcare tab of $75 billion a year.

Although only a few companies so far are firing smokers simply for smoking, a growing number are tacking extra charges onto smokers’ health plans or keeping them off the insurance rolls. Alaska Airlines tests applicants for nicotine; Union Pacific stopped hiring smokers; tobacco users have to cover 100% of their healthcare bill at Crown Laboratories in Johnson City, Tenn.

Execs are crusading against tobacco, starting wellness programs, rolling out the salad bars and installing gym equipment in hopes of controlling their escalating medical costs, a bill picked up by the public sector in other industrial nations. “The government has clearly demonstrated that they’re not going to do anything to fix, if not a broken (healthcare) system, one that’s in significant need of repair,� said Jim King, a spokesman for Scotts Miracle-Gro, which has 5,300 employees. “But companies are the ones paying the bill. We can only for so long sit here and complain about incurring 15%, 18%, 20% increases in our healthcare costs and not take some proactive action to stem the increases.�

At Weyco, Weyers gave employees 15 months to quit smoking and offered a choice of cessation programs paid for by the company. Out of 28 smokers at Weyco, 24 opted to kick the habit. Epolito and three employees who failed nicotine tests were fired. Random tests busted three more people. That’s a success rate that could give Big Tobacco serious heartburn, not to mention save lives.

No question, the unemployment line is a great incentive. The problem is that such policies upend inalienable rights we enjoy off the clock. Jobs are important, but do we really want to turn executives into nannies and lifestyle cops?

Companies are already barging into living rooms, weekends and vacations through 24/7 electronic contact and unbounded overtime. The incursions are expanding because politicians won’t say no to anything the market dictates and because something has fundamentally changed in the employee-employer relationship. There seems to be an assumption that we pretty much “enlist� when we join a company these days.

“The Constitution and Bill of Rights only apply to the government. They don’t apply to any private party, including a corporation,� said Lewis Maltby, president of the National Workrights Institute. “You have no 1st Amendment rights where your boss is concerned.�

Some legal experts, however, think there are grounds to contest smoker dismissals. The law protects employees against discrimination based on race, religion, gender, disability or retaliation. Maltby says the Americans With Disabilities Act “prohibits non-job-related medical investigations.�

Joseph Lovretovich, an employment attorney in Woodland Hills, says that firing a smoker “would violate his disability rights. An employee could say they were addicted to nicotine.... You’re firing someone because of a health condition.�

When off-site employee behavior cases hit the courts, the key may be whether the activity interferes with the job. “I think the courts are going to say that unless it’s detrimental to the job or your performance, once you punch out, that’s your free time,� said David Diamond, a criminal justice and employment attorney in Los Angeles.

There are signs that brazen company moves against employees may trigger a pushback.

About 30 states have passed legislation that prohibits companies from discriminating against such lifestyle choices as smoking. Lovretovich says he’s swamped with cases from people fired over health problems, unpaid overtime and -- a growing trend -- pregnancy dismissals. And Forces, a smokers’ rights organization, plans to vigorously challenge the firing trend.

Businesses can’t be blamed for trying to cut costs. That’s what businesses do. But instead of firing people for what they do in their private life, perhaps they should focus on issues inside company walls. Job stress is a vastly bigger problem, costing business more than $300 billion a year, according to the Economic Policy Institute. If companies are serious about medical bills, the cutting has to start at the office -- slashing chronic overtime, increasing flex schedules and simmering down workaholic managers enough so that there’s time to hit the salad bar.