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A hazy area of workers’ rights

I started my professional life in offices that were hazy with cigarette smoke. At one of them, the engineering company Brown & Root Vickers in a suburb of London, 25 smokers shared one large room.

It was horrible, but overflowing ashtrays were the workplace norm in the late 1980s – at least at the places I worked.

These days, of course, the only smokers you see in downtown Boise are the ones shivering outside. And now it seems even they might be going away – although where they’ll take refuge, I don’t know.

Last month, the Central District Health Department took the bold step of announcing it will no longer hire anyone who uses tobacco. Blue Cross of Idaho is doing the same. Ada County Sheriff’s office has had a similar policy for 10 years.

The news about CDHD and Blue Cross took some local smokers by surprise. Their outdoor smoking spaces were just then in the process of being whittled down by the city of Boise, but people I know who smoke weren’t expecting a workplace to reject them because of the habit.

It took me by surprise too. I know people who smoke occasionally. They have a cigarette when they’re out on the weekends, but that’s it. Other than this vice, they’re contributing to society by performing their jobs, separating their trash from their recycling, and slowing to 20 mph in school zones.

So I have a measure of sympathy with them. I don’t smoke. But really, should we be telling our workers what legal activities they can choose when they’re away from the office?

Thanks to the rules at CDHD and Blue Cross, closeted tobacco users there have to come out. An employer in Idaho not only may ask job candidates if they smoke, but also may require them to undergo urinalysis that would detect tobacco use. And then the employer can choose not to hire them.  Though some other states (among them Missouri, South Dakota, Wyoming and Indiana) prohibit employers from discriminating against employees or prospective employees who use tobacco off-premises during nonworking hours, no Idaho laws prevent an employer from asking job applicants about their tobacco use.

Some states, among them California, specifically protect employees’ rights to engage in legal activities when they’re off-duty.

But not Idaho. The Blue Cross and CDHD decisions leave some gray areas. While there’s nothing to stop Idaho employers from regulating their workers’ activities when they’re off-duty, what happens if a supposed non-smoker they’ve just hired does have a cigarette on a Saturday night?

I asked this of Janet Peck a personnel manager at CDHD. She didn’t have an answer for me, though she did say the health district can’t randomly test employees.

“I suppose that’s a possibility,” she said of harboring a clandestine tobacco user. “I would hope that to not be the case.”

Once employees are hired at Blue Cross, they won’t be fired for using tobacco, spokesman Josh Jordan told me.

Bigger problems loom for those employers. According to Boise lawyer Sally J. Reynolds, an employment lawyer at Farley Oberrecht West Harwood and Burke, it’s possible workers who are fired (or not hired) for smoking could claim discrimination based on the Americans with Disabilities Act.  ADA could classify nicotine addiction as a disability, said Reynolds, who is vice chairwoman of the employment and law section of the Idaho State Bar.

There are other questions. If an employer did fire a smoker, would that worker be eligible for unemployment insurance? If you’re fired for “misconduct,” you’re not. But where does tobacco fit in there?

I get it: smoking costs us money. So do alcohol use and doughnut consumption. But the Blue Cross spokesman, Josh Jordan, told me his company doesn’t plan to offer a rate reduction to companies that reject tobacco users. He also said a no-tobacco-at-all policy could save a company money by cutting back on the amount of medical care workers use – and therefore cutting back on the company’s risk factor, which is used to calculate rates.

But at what cost? We don’t want companies to start regulating workers’ other behavior when they’re not on the job. But like the eye-watering office where I toiled back in South London, the Idaho laws governing employees’ rights are a bit hazy.

Anne Wallace Allen is managing editor of  Idaho Business Review.

About Anne Wallace Allen

Anne Wallace Allen is the editor of the Idaho Business Review.