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The City of St. Cloud, Florida recently touched off a battle between the rights of smokers and nonsmokers when it required that all city job applicants be tobacco-free. Candidates have to affirm that they have not smoked or used tobacco products for at least one year. They also must agree to be tested in the future, if they are suspected of violating the prohibition against tobacco use. These new rules do not apply to St. Cloud’s current employees. Another Florida city, North Miami, will not accept job applications from active smokers, but it does not monitor tobacco use by individuals once they are hired. Coral Gables prohibits its police officers from smoking. REDUCED ABSENTEEISM The employers contend this results in reduced absenteeism because of illness, higher productivity without smoke breaks, and lower medical insurance costs with fewer health complications. On the other hand, the American Civil Liberties Union has responded in vigorous protest . It is threatening legal action for “lifestyle discrimination.” The ACLU says companies should not be permitted to regulate the personal lives of its workers and their activities, 24 hours a day, seven days per week. It says that virtually every lifestyle choice brings with it some level of a health-related consequence. While smoking is a health risk, likewise, high blood pressure or elevated cholesterol may also impact on a person’s well being. The ACLU does not want employers freely acting as “health police.” It claims that smokers and overweight people are the most frequently targeted groups of this “lifestyle discrimination.” However, others who may be scrutinized in the future might include social drinkers and those whose genes may make them vulnerable to certain diseases. Employers in Connecticut are legally prohibited from making employment decisions based on an individual’s off-work smoking status. Connecticut and a majority of states that have enacted laws to prevent discrimination against smokers. Others include Maine, New Hampshire, Rhode Island, New York and New Jersey. Connecticut General Statutes � 31-40s basically provides two things. First, a company can’t require employees or job applicants, as a condition of employment, to refrain from smoking or using tobacco products outside of their work. Second, the employer cannot diminish employees’ pay, working conditions or privileges of employment, based on tobacco use outside the job. Thus, the law covers not only cigarettes, cigars and pipes, but also it applies to the use of such items as snuff and chewing tobacco. Also, it means, for example, that an employer may not limit sick benefits simply because an employee is a smoker, or such workers may not be charged more for the cost of their health insurance on the basis that they use tobacco. FEW EXCEPTIONS There are a few exceptions. If an organization’s primary purpose is to discourage use of tobacco it may impose smoking restrictions on employees. In addition, municipal hiring practices and collective bargaining agreements involving paid firefighters and police officers are exempted from this law. Presumably, public sector employers are entitled to greater control over the lifestyles of their fire and police personnel because of the greater health risks associated with these occupations. Other Connecticut laws limit workplace smoking, such as the requirement that, if requested, the establishment of a workplace no-smoking area. In businesses where smoking is permitted, the company must use existing barriers and ventilation systems to minimize the effect of smoking on nonsmoking areas. An employer is entitled to designate the entire business a nonsmoking area. By law, smoking also is regulated in any building owned or leased by state or local political subdivisions; health care institutions; retail food stores; restaurants (based on their size); and public schools, while school is in session or student activities are going on. In these locations, there are provisions for the designating smoking areas. Clearly, a tension exists between the rights of employees who smoke and the maintenance of a smoke-free workplace environment. The issue of “lifestyle discrimination” posed by the ACLU is novel concept that is likely to see more development in the courts, Congress and state legislatures. Peter A. Janus is the Editor of Connecticut Labor & Employment Law, published by the Connecticut Law Tribune, and he is a principal in the law firm of Siegel, O’Connor, Zangari, O’Donnell & Beck, www.soszlaw.com, in Hartford.

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