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A Michigan company’s recent decision to stop hiring smokers has angered employment lawyers who allege that the new no-smoking policy reeks of discrimination. Several attorneys say the policy, which also requires that all employees undergo testing for tobacco use, goes too far in that it aims to regulate legal activity�in this case smoking. Moreover, they argue, it monitors what people do outside the workplace and discriminates against their lifestyles, a practice that is banned in 29 states that have smokers’ rights statutes, also known as “lifestyle rights laws,” which prohibit employers from discriminating against smokers. Michigan is one of 21 states that do not have such laws. Others include California, Florida, Ohio and Texas. “To have an employer monitor legal behavior is going over a line that we just can’t cross. It’s going toward that Big Brother mentality that we just need to stay away from,” asserted Joni Thome, an employment attorney at Halunen & Associates in Minneapolis who hopes the recent Michigan policy prompts state legislatures to adopt lifestyle statutes. “What’s next?” Thome added. “Are they going to tell me who I can and can’t talk to? Or you can’t eat fast food? Come on.” But the Michigan company that’s got lawyers fuming asserts that it has done nothing illegal, or unethical. Attorney David Houston, who helped draft the no-smoking policy for Weyco Inc., a medical-benefits administration company in Okemos, Mich., said the CEO of the company is hoping to create a healthy work force. He also denied claims that the company is banning smoking as a way to curb health care costs. “The CEO is extremely committed to having a healthy work force . . . and he’s using his company as a guinea pig for this policy to show employers that this tobacco-free policy can be implemented successfully,” said Houston, of the Lansing, Mich., office of Detroit’s Dickinson Wright. Nicotine ‘test’ in use Such policies have been tried elsewhere. Last year, the Union Pacific railroad company in Omaha, Neb., announced a no-smoking policy for all employees, both on and off premises, and questions potential hires about smoking on applications. Also, Alaska Airlines, which has a similar policy, requires job applicants to pass a nicotine test before they can be hired. According to Houston and several other employment attorneys, there have been no recent legal challenges to the no-smoking policies. Houston cited one 1987 case, a 10th U.S. Circuit Court of Appeals decision that upheld an employer’s right to ban off-duty smoking. In that case, a firefighter trainee sued the Oklahoma City Fire Department and city over a rule that prohibited smoking, on and off duty, for one year. The court found that the no-smoking rule had a legitimate purpose in promoting health and safety and did not violate due process. Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987). In the recent Michigan case, four Weyco employees have quit their jobs after refusing to take a tobacco test, according to Houston. He said the company announced the policy 15 months ago to its 200-plus employees, giving smokers more than a year’s time to kick the habit before the Jan. 1 testing day. All employees have passed the test, Houston added. But some lawyers remain skeptical about the new policy. “My initial reaction was questioning whether that would be something that would pass muster in the courts, whether it would survive under the discrimination laws,” said Lori Shapiro, general counsel and trainer for Employment Learning Innovations in Atlanta, a company that provides workplace legal training to help change employee behavior. Shapiro, a former litigator in employment discrimination cases, said before the recent Michigan policy, she had never heard of a corporate ban on all smoking. “It’s a new one to me,” Shapiro said. “I’ll be very curious to see if it does survive . . . .I think it would be difficult to make an argument that someone’s smoking off the job is influencing their performance on the job.”

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