Smoking at Work: The Battle Continues

It is always nice when what you're teaching in class coincides with what's being reported in the news.  Over the last week, we have been covering privacy in the workplace and, in particular, the right of an employer to tell an employee what he or she may do when away from work.

One of the more controversial areas, and indeed the area that probably generates the most heated discussion in my employment law class during the semester is whether employers may only hire non-smokers or fire employees who refuse to quit smoking.  Generally, the non-smokers agree that the employer has the right to hire and fire whom they want in this regard, while the smokers as a group think it is an inappropriate invasion of their privacy to condition their employment on their smoking habits.

Previous posts on this blog have discussed how employers are increasingly attempting to regulate their employee's off-duty conduct behavior in the areas of losing weight, living healthier lifestyles, and, of course, smoking cessation.

Now, CNN.com reports that a growing number of employers are not necessarily requiring their employees to stop smoking, but if they do continue to smoke, they are charging them higher health insurance premiums.  From the article:

A growing number of private and public employers are requiring employees who use tobacco to pay higher premiums, hoping that will motivate more of them to stop smoking and lower health care costs for the companies and their workers.

Meijer Inc., Gannett Co., American Financial Group Inc., PepsiCo Inc. and Northwest Airlines are among the companies already charging or planning to charge smokers higher premiums. The amounts range from about $20 to $50 a month.

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[A] general benefits survey of 950 U.S.-based employers last year showed that at least 41 percent used some form of financial incentives or penalties in their health care plans.

[E]stimates [are] that at least 8 percent to 10 percent of the businesses probably aimed some of the incentives or penalties at smokers and . . . that percentage is growing.

Some may say that this is perhaps the best way of dealing with those parts of an employee's off-duty behavior that actually do come back and adversely impact the employer's bottom line.  In short, "If you want to engage in destructive behavior fine, but I'm not going to pay for it."

I want to open the employee off-duty conduct debate again to the readers of this blog and ask whether a carrot, stick, both, or neither, is the best policy when employers are addressing the smoking behavior of their employees.

PS