[OldManMac]

http://www.freep.com/news/latestnews...6_20050124.htm

Okemos company fires 4 employees for refusing smoking test


ASSOCIATED PRESS

Monday, January 24, 2005

LANSING -- Four employees of Okemos-based health benefits administrator Weyco Inc. have been fired for refusing to take a test that would determine whether they smoke cigarettes.

The company instituted a policy on Jan. 1 that makes it a firing offense to smoke -- even if done after business hours or at home, the Lansing State Journal reported Monday.

Weyco founder Howard Weyers said previously that he instituted the tough anti-smoking rule to shield his company from high health care costs.

"I don't want to pay for the results of smoking," he said.

The anti-smoking rule led one employee to quit work before the policy went into place. Since Jan. 1, four more people were shown the door when they balked at the anti-smoking test.

"They were terminated at that point," said Chief Financial Officer Gary Climes.

Even so, Weyco said, the policy has been successful. Climes estimated that about 18 to 20 of the company's 200 employers were smokers when the policy was announced in 2003.

Of those, as many as 14 quit smoking before the policy went into place. Weyco offered them smoking cessation help, Climes said.

[Mafia]

is this legal?

[Sherwin]

Oh dear. They are so sued.

[stevesnj]

Legal? Yep If they faithfuly signed a binding agreement not to smoke even after work hours and they knew they would be fired they have no chance in court. The policy seems to have just been instituted. But If they were not hired unless they signed the agreement that is against the law.

[Mafia]

Originally posted by stevesnj:
Legal? Yep If they faithfuly signed a binding agreement not to smoke even after work hours and they knew they would be fired they have no chance in court. But If they were not hired unless they signed the agreement that is against the law.

i don't possibly see why anyone who smoked would sign an agreement to be fired if they smoked. the article didn't say whether the employees had worked longer then 2003 (year it was implemented).

[stevesnj]

Originally posted by Mafia:
i don't possibly see why anyone who smoked would sign an agreement to be fired if they smoked. the article didn't say whether the employees had worked longer then 2003 (year it was implemented).

Thats what I would like to know. Were they smoker already? and did they ever sign anything. I wouldn't sign.

[Mafia]

Originally posted by stevesnj:
Thats what I would like to know. Were they smoker already? and did they ever sign anything. I wouldn't sign.

even if i didn't smoke i wouldn't sign

[stevesnj]

Originally posted by Mafia:
even if i didn't smoke i wouldn't sign

True

[Mrjinglesusa]

There is no way this will hold up. The people fired will either get their jobs back or receive some kind of compensation. Seems to me the company instituted the "policy" without requiring any kind of agreement to be signed. Even if there were an agreement, it can't possibly be legal to forbid people to something that is LEGAL to keep their job. What's next? A "policy" that you cannot become pregnant because they do not want to absorb the costs of maternity leave and medical bills? How about a "policy" that you cannot drink alcoholic beverages? A "policy" that you cannot eat high cholesterol foods?

[jnrjr79]

Whoa, folks. First, the question of whether it's legal is different than the question of whether or not they will get sued. Second, most employees are at-will employees, as opposed to contract employees. If you are not affiliated with the government, you are a private entity who can hire and fire at will. You may fire people for things that are perfectly legal. But more importantly, you may fire your employees FOR NO REASON AT ALL. There may be limited anti-discrimination laws to counteract punitive treatment of classes of people who have traditionally been discriminated against, but by and large your status of your employment is totally within the purview of your employer.

[stevesnj]

Originally posted by jnrjr79:
There may be limited anti-discrimination laws to counteract punitive treatment of classes of people who have traditionally been discriminated against, but by and large your status of your employment is totally within the purview of your employer.

Hmm I wonder if Nicotine addiction is considered a disease thus qualifying it as a disability.

[jnrjr79]

Originally posted by stevesnj:
Hmm I wonder if Nicotine addiction is considered a disease thus qualifying it as a disability.

I would almost guarantee it's treated as voluntary behavior that is not in and of itself a disease/disability. I doubt there's any problem whatsoever with getting rid of a smoker. However, if they actually come down with a disease, then maybe there would be some sort of interesting issue. I don't know though.

[OldManMac]

Originally posted by jnrjr79:
Whoa, folks. First, the question of whether it's legal is different than the question of whether or not they will get sued. Second, most employees are at-will employees, as opposed to contract employees. If you are not affiliated with the government, you are a private entity who can hire and fire at will. You may fire people for things that are perfectly legal. But more importantly, you may fire your employees FOR NO REASON AT ALL. There may be limited anti-discrimination laws to counteract punitive treatment of classes of people who have traditionally been discriminated against, but by and large your status of your employment is totally within the purview of your employer.

Bingo! Michigan is an "at will" state, and, as such, an employer may terminate you without any reason whatsoever, unless you are under a legal contract. They can simply say, "You're fired," and that's it.

[NYCFarmboy]

what is next?

firing fat people for over-eating at home?

[Mrjinglesusa]

Originally posted by NYCFarmboy:
what is next?

firing fat people for over-eating at home?

My point exactly. It may be legal but it stinks to high heaven. They are going after a politically "safe" group. i.e. they probably won't get too much PR flack for this. But, if they do this to pregnant women (high costs there too) or obese people (even higher costs) there would be a s***storm. The owner of this company is an a**hole IMO...

[jnrjr79]

Agreed. There are all sorts of self desctructive behaviors but it's just easier to pick on certains types of people and get away with it.

[nforcer]

If I were an employer, I would not hire any smokers to begin with. I have a right to protect the well being of my other employees and myself. And if I provided healthcare coverage of some kind, I could use that as another excuse.

If they don't take the test, they know they will fail. They deserved to be fired.

[stevesnj]

Originally posted by nforcer:
If I were an employer, I would not hire any smokers to begin with. I have a right to protect the well being of my other employees and myself. And if I provided healthcare coverage of some kind, I could use that as another excuse.

If they don't take the test, they know they will fail. They deserved to be fired.

Well you cannot deny health coverage to some and not to others only the health insurer can.

[Mafia]

Originally posted by nforcer:
If I were an employer, I would not hire any smokers to begin with. I have a right to protect the well being of my other employees and myself. And if I provided healthcare coverage of some kind, I could use that as another excuse.

If they don't take the test, they know they will fail. They deserved to be fired.

who are they endangering by smoking away from work?

[Kodachrome]

Originally posted by Mafia:
who are they endangering by smoking away from work?

themselves and the pocketbook of their employer

[waxcrash]

Originally posted by KarlG:
Bingo! Michigan is an "at will" state, and, as such, an employer may terminate you without any reason whatsoever, unless you are under a legal contract. They can simply say, "You're fired," and that's it.

Even though they where employed "at will", they have been discriminated, which is illegal.

[OldManMac]

Originally posted by waxcrash:
Even though they where employed "at will", they have been discriminated, which is illegal.

By remaining at the employer, after the policy was announced, they implicity agreed to his conditions. There is no discrimination. Besides, as I already stated, the employer doesn't have to give a reason for termination; all he has to do is say, "You're fired." I was fired once, for what I thought was unfair reasons, and I contacted several labor lawyers, and the National Labor Relations Board, and they all told me to hurry up and find a job if I wanted more income, and that was in Michigan.

[Mrjinglesusa]

After thinking about this some more, I have come to the conclusion that this is NOT about being legal or illegal. It boils down to rights. This is one small company. Why stop there? What if non-contracted workers at Apple, Ford Motor, Microsoft, etc. were told they COULD NOT SMOKE in the privacy of their own homes or they would be fired?
Scary, very scary. I agree smoking is a bad habit. However, to deny someone a job because they smoke is wrong (whether it is legal or not). This is discrimination. Period.

[macroy]

Originally posted by Mrjinglesusa:
After thinking about this some more, I have come to the conclusion that this is NOT about being legal or illegal. It boils down to rights. This is one small company. Why stop there? What if non-contracted workers at Apple, Ford Motor, Microsoft, etc. were told they COULD NOT SMOKE in the privacy of their own homes or they would be fired?
Scary, very scary. I agree smoking is a bad habit. However, to deny someone a job because they smoke is wrong (whether it is legal or not). This is discrimination. Period.

Yes. You should have the right to do whatever you want...
But, it's not a right to be provided a job. And the employer should have the right to hire who they think is the best choice (as long as it's all legal).

discrimination? Anything can be considered discrimination... it's what's recognized by the legal system (sex, race etc...) that counts.

"what? you're firing me 'cause I'm lazy and surf porn at work? That's discrimination!"

[Chuckit]

Originally posted by Mrjinglesusa:
However, to deny someone a job because they smoke is wrong (whether it is legal or not). This is discrimination. Period.

Yes, it's discrimination. Discrimination isn't illegal, unethical or even necessarily unfair. Discrimination is what prevents us from having pedophiles as grade-school teachers and keeps functional illiterates from being editor of the New York Times.

Just because somebody is discriminating doesn't make them wrong. It takes more than that to prove them wrong.

[Mrjinglesusa]

Originally posted by Chuckit:
Yes, it's discrimination. Discrimination isn't illegal, unethical or even necessarily unfair. Discrimination is what prevents us from having pedophiles as grade-school teachers and keeps functional illiterates from being editor of the New York Times.

Just because somebody is discriminating doesn't make them wrong. It takes more than that to prove them wrong.

Um, no. A pedophile is committing an illegal act. An illiterate is not QUALIFIED to be the editor of the NYT. Big difference. You are comparing apples to God knows what.

If a person is qualified for a job but smokes, and another person is LESS qualified but does not smoke, it is unethical and discriminatory to not hire the more qualified person just because he or she smokes. Although not illegal currently, it is still discrimination.

Definition of discrimination: Treatment or consideration based on class or category rather than individual merit; partiality or prejudice.

These people were given UNFAIR treatment because they are smokers. They were qualified to do their jobs ("individual merit") but were fired because they smoked (based on "category")

You can try to justify it all you want but this boils down to discrimination pure and simple. At the moment, it is illegal to discriminate based on race, sex, age, etc. It is not illegal to discriminate based on whether a person smokes or not. Based on this company alone (it's small so no one probably cares) probably nothing will come of it. However, if it continues to other larger companies, the courts will rule this is illegal discrimination.

[Goldfinger]

I think it's incedrible that it is even possible to fire someone just because they smoke.

[voodoo]

Originally posted by KarlG:
By remaining at the employer, after the policy was announced, they implicity agreed to his conditions. There is no discrimination. Besides, as I already stated, the employer doesn't have to give a reason for termination; all he has to do is say, "You're fired." I was fired once, for what I thought was unfair reasons, and I contacted several labor lawyers, and the National Labor Relations Board, and they all told me to hurry up and find a job if I wanted more income, and that was in Michigan.

No this is discrimination.

Smoking at home in no way makes you a better or worse employee than anyone else. Now given that is the case (and it most certainly is) then 4 employees have been selected out of a larger group based on the bias of the employer and fired.

What you do in your own private time has nothing to do with your employer unless it somehow harms him perhaps. If you're a criminal at night or a drug abuser. These things are illegal and therefore not something a company wants to see in their employees.

Yes companies in the US can fire you for no reason what so ever, but if they specifically name a reason and it is discrimination then they can't now can they.

"Yes we fired those niggers because they're of an inferior race and those homos too because they hump eachother in the ass at night - and those probable smokers because they wouldn't take our test and have therefore proven to the world that they must smoke at home or something."

How can you prove something anyway by NOT testing it?? Please let us scientists in on it because it sure would save us heck of a lot of time!!

Then there is the question if a 'smoking test' is completely reliable. I can't imagine how such a test would work in practice. This thing smells so bad they don't need cigarette fuming emplyees at this company to stink.

This is discrimination based on a dubious test that shouldn't get anyone fired. Land of the free, ya right!

[Mrjinglesusa]

Originally posted by voodoo:
No this is discrimination.

Smoking at home in no way makes you a better or worse employee than anyone else. Now given that is the case (and it most certainly is) then 4 employees have been selected out of a larger group based on the bias of the employer and fired.

What you do in your own private time has nothing to do with your employer unless it somehow harms him perhaps. If you're a criminal at night or a drug abuser. These things are illegal and therefore not something a company wants to see in their employees.

Yes companies in the US can fire you for no reason what so ever, but if they specifically name a reason and it is discrimination then they can't now can they.

"Yes we fired those niggers because they're of an inferior race and those homos too because they hump eachother in the ass at night - and those probable smokers because they wouldn't take our test and have therefore proven to the world that they must smoke at home or something."

How can you prove something anyway by NOT testing it?? Please let us scientists in on it because it sure would save us heck of a lot of time!!

Then there is the question if a 'smoking test' is completely reliable. I can't imagine how such a test would work in practice. This thing smells so bad they don't need cigarette fuming emplyees at this company to stink.

This is discrimination based on a dubious test that shouldn't get anyone fired. Land of the free, ya right!

Finally someone with some common sense. It's a shame more Americans can't see the danger in this.

[Chuckit]

Originally posted by Mrjinglesusa:
Um, no. A pedophile is committing an illegal act.

But what if he's well-qualified? Disincluding him just because he belongs to the group "pedophile" is discrimination, by your definition.

I realize it's a ridiculous thing to say. That's my point.

Originally posted by Mrjinglesusa:
Definition of discrimination: Treatment or consideration based on class or category rather than individual merit; partiality or prejudice.

These people were given UNFAIR treatment because they are smokers. They were qualified to do their jobs ("individual merit") but were fired because they smoked (based on "category")

Yes, you can categorize people based on their actions, but I'm not sure how unfair it is. Categories such as "pedophile," "asshole" and "sexual harasser" all seem like pretty good justifications for not hiring someone to me. I haven't looked at the studies, but it's entirely possible that smokers are more lethargic or something like that, thus making them worse employees. I'm not going to jump in and judge the company without knowing the full reasoning just because they discriminated (in the sense of acknowledging differences between different kinds of people).

I'm not saying they were right. I'm just saying I'm not sure they were wrong.

[Mrjinglesusa]

Originally posted by Chuckit:
But what if he's well-qualified? Disincluding him just because he belongs to the group "pedophile" is discrimination, by your definition.

I realize it's a ridiculous thing to say. That's my point.


Yes, you can categorize people based on their actions, but I'm not sure how unfair it is. Categories such as "pedophile," "asshole" and "sexual harasser" all seem like pretty good justifications for not hiring someone to me. I haven't looked at the studies, but it's entirely possible that smokers are more lethargic or something like that, thus making them worse employees. I'm not going to jump in and judge the company without knowing the full reasoning just because they discriminated (in the sense of acknowledging differences between different kinds of people).

I'm not saying they were right. I'm just saying I'm not sure they were wrong.

Their "reasoning" is that the owner doesn't want to pay "the higher health care costs" of employing a smoker. This is bull***t as I have previously stated. Obesity has FAR higher healthcare costs involved than smoking but they are not discriminating against fat people. They are going after a "politically safe" group.

Again, your examples are not comparable to this. Being a pedophile is ILLEGAL (smoking isn't). Sexual harassment is illegal (smoking isn't). Again, read my post. IF they are not good employees (lethargic or whatever) that is fine and they have every right to fire them. As it stands, they simply fired them for not taking a "smoking test" because the company has a no smokers (hiring or employing) policy. This policy was instituted only recently and it hasn't been determined whether these employees were forced to sign any type of document regarding the policy.

How would you feel about a "we don't hire fat people" policy? Justification - higher health care costs. Or, "we don't hire pregnant women and you cannot become pregnant" policy? Higher health care costs there as well (maternity leave and prenatal care). Their justifications for their policy open the door for ALL KINDS of other discrimination. That's my point. This is VERY dangerous territory in my opinion. And this is in the US!

[Mafia]

Originally posted by Kodachrome:
themselves and the pocketbook of their employer

the pocketbook of the employer? they aren't spending company money. whether they smoke or not they get payed the same so.

[Ghoser777]

Smoking => Health Problems => Using Company Health Insurance.

This, unfortunately, is infinitely regressive. Hopefully my employer doesn't ask me to stop running because I might blow out my knee and need reconstructive surgery

[Mafia]

Originally posted by Ghoser777:
Smoking => Health Problems => Using Company Health Insurance.

This, unfortunately, is infinitely regressive. Hopefully my employer doesn't ask me to stop running because I might blow out my knee and need reconstructive surgery

that could apply for almost anything as you pointed out with the running.

[discotronic]

I hope those people sue the sh*t out of that company. I can understand them saying that smoking will be prohibited during working hours. However, what they do in their own home is another thing all together. It isn't like they refused a "real" drug screening. No job is worth that kind of BS. I may work for a company but they don't own me.

I served 5 years in the military and I feel that I have earned my freedom. I would not let some money hungry corporation try to take even the smallest portion of it away. This whole thing just boils down to discrimination in the name of greed.

[CRASH HARDDRIVE]

I worked at two Ted Turner owned studios during the 90�s; Hanna Barbera, and New Line Cinema- in order to work for any Turner company, you had to sign an agreement that you�re not a smoker- period. I�ve still got my Turner companies handbook, and it�s right in there. No smoking, not even on your own time, in your own home, not anywhere.

If a person was found out to be a smoker, they could be fired. T�was official policy until Time Warner bought out Turner, and t�was perfectly legal.

Personally I didn�t mind- I don�t smoke. I know a good many smokers were there- they just knew to keep the fact well hidden while at work, or at any work-related activity. I knew there were people fired for sneaking a smoke on the job (perfectly legal for the company to enforce)- but never for smoking after work hours (impossible to truly enforce.)

There was never anything like a test anyone had to submit to, to determine if a person was a smoker - that seems carrying things way too far. There probably is legal recourse to sue- it seems to me that requiring employees to submit to such tests would be a gross invasion of privacy.

I know for a fact a company can enforce a no-smoking policy, and even have stated policy that prohibits (at least on paper) off-site smoking- but actually requiring physical testing? For a legal substance? That smells way rotten.

[SimeyTheLimey]

Originally posted by voodoo:

Yes companies in the US can fire you for no reason what so ever, but if they specifically name a reason and it is discrimination then they can't now can they.

This is legally wrong. You are confusing discrimination against protected classes (race, gender, age, disability, and so on), which is outlawed by statute, with some kind of general prohibition on discrimination. The latter doesn't exist. The default rule in the US is a firm CAN discriminate unless an exception exists. They can be explicit about discriminating, or they can be silent about it. But just being discriminatory, by iteself isn't a problem unless the targetted group is protected by law. As far as I know, there is no protection for smokers.

So it is a nice theory you have articulated, but your statements about US law are simply wrong. Of course, I don't know why you would be making such certain statements about the law of a country you have never lived in, and whose laws you have never studied. A short " I have no idea how it works in America, but in Iceland this would be illegal" statement would go a long way to alleviate the "talking out of your ass" factor.

That's not to say I know what the answer is either. None of the posts here have hinted at the complexity of this problem. As far as I can tell, there could be other theories that would allow these employees to sue. The problem is it would depend on the law of the state in which the employees are employed, as well as factual questions about their employment contracts (if any). It could also turn on the law that governs their health insurance plan. I don't know because we don't have the information to answer those questions, and what we could find out I for one am not about to research. They may have a great case, or they may have no case at all regardless of our knee jerk emotional reactions.

[Eriamjh]

Fat people are next...

[m a d r a]

Originally posted by Eriamjh:
Fat people are next...

surely that would be even more unfair? OK. with smoking there is a direct link to health problems - but some overweight folk in the business world have been known to exercise in quite a vigorous manner

[JHromadka]

Good grief. I don't smoke, but I'm not going to stop someone from doing it in their own home. I also expect to smell it when I go to a bar.

Would be an interesting case, as nicotine is a drug, and other things like alcohol and marijuana consumption at home could get you fired.

[Mafia]

Originally posted by CRASH HARDDRIVE:
I worked at two Ted Turner owned studios during the 90�s; Hanna Barbera, and New Line Cinema- in order to work for any Turner company, you had to sign an agreement that you�re not a smoker- period. I�ve still got my Turner companies handbook, and it�s right in there. No smoking, not even on your own time, in your own home, not anywhere.

If a person was found out to be a smoker, they could be fired. T�was official policy until Time Warner bought out Turner, and t�was perfectly legal.

Personally I didn�t mind- I don�t smoke. I know a good many smokers were there- they just knew to keep the fact well hidden while at work, or at any work-related activity. I knew there were people fired for sneaking a smoke on the job (perfectly legal for the company to enforce)- but never for smoking after work hours (impossible to truly enforce.)

There was never anything like a test anyone had to submit to, to determine if a person was a smoker - that seems carrying things way too far. There probably is legal recourse to sue- it seems to me that requiring employees to submit to such tests would be a gross invasion of privacy.

I know for a fact a company can enforce a no-smoking policy, and even have stated policy that prohibits (at least on paper) off-site smoking- but actually requiring physical testing? For a legal substance? That smells way rotten.

ya i see what your saying, but i'm wondering if these people signed an agreement when they were hired or if the policy was created after they were hired.

[Millennium]

Originally posted by Mrjinglesusa:
Their "reasoning" is that the owner doesn't want to pay "the higher health care costs" of employing a smoker.

Welcome to prevention-oriented medicine, as practiced by most HMOs and the socialized-healthcare systems which are often based on them. Expect this kind of thing to become much more common, particularly when it starts being given force of law in nations which won't be able to sustain their systems any other way.

[wdlove]

A private business has a right to hire whoever they like. I don't feel they have a right to dictate what a person does in their private lives.

[spacefreak]

Originally posted by Kodachrome:
themselves and the pocketbook of their employer

Do they eat a lot of twinkies at home? Do any of them drink daily? Are any bad drivers? Are any of them single and engage frequently in unprotected sex?.

20+ years of any of those will undoubtedly result in hurting their employers pocketbooks.

[Sherwin]

Originally posted by m a d r a:
surely that would be even more unfair? OK. with smoking there is a direct link to health problems - but some overweight folk in the business world have been known to exercise in quite a vigorous manner

...and Madra gets this year's award for most inventive reference to the Fat Sweaty One� dancing video.

[spacefreak]

Originally posted by Eriamjh:
Fat people are next...

You're right on target. Health costs for obesity rival those of smoking, AND there's a big difference: nicotine is an addictive substance while food really has no addictive properties (exept maybe chocolate... big maybe).

[Jan Van Boghout]

Originally posted by spacefreak:
You're right on target. Health costs for obesity rival those of smoking, AND there's a big difference: nicotine is an addictive substance while food really has no addictive properties (exept maybe chocolate... big maybe).

So what"s your point, because it's addictive it should be more easily tolerated?

[finboy]

Originally posted by NYCFarmboy:
what is next?

firing fat people for over-eating at home?

Given the cost of health insurance, and the litigious nature of society, this isn't a long way off.

[OldManMac]

Originally posted by NYCFarmboy:
what is next?

firing fat people for over-eating at home?

That may be possible in some places, theoretically, but Michigan does have laws making it illegal to discriminate against overweight people in the workplace.

[spacefreak]

Originally posted by Jan Van Boghout:
So what"s your point, because it's addictive it should be more easily tolerated?

My point was that I was agreeing that obese people are next in the employment intolerance line. A clue to that would be in the post to which I was replying to.

In terms of addiction, though, I don't see why smoking's not considered a disease like obesity and alcoholism.