Employers hoping to cut health care costs look first toward low-hanging fruit, such as encouraging employees to reduce or eliminate unhealthy behaviors - and perhaps none is more preventable than smoking. Certainly few are more expensive - a smoker costs a company $12,000 more a year than a nonsmoker, with the total annual medical price tag running north of $95 billion. Tack on another $97 billion a year that the Centers for Disease Control and Prevention says smokers cause in lost productivity, and it's easy to see why CFOs and benefits managers would want to put smokers clearly in their sights.

"If you want to affect future health care costs, tobacco is the way to go," says Chris Bostic, deputy director for policy at Action on Smoking and Health, citing a study conducted in California that revealed for every dollar the state spent on tobacco prevention, it saved $18 in health care costs.

However, for employers looking to replicate that type of success through smoke-free policies and tobacco-cessation programs, it's important to note that much of the country has some kind of lifestyle protection or "smokers' rights" law on the books. With that in mind, companies, particularly those that straddle state lines, must review their policies, as well as state law, carefully or risk facing a discrimination lawsuit.

John Thurman, an employment attorney with New Jersey-based Farrell & Thurman, says that while supporting"[tobacco]-cessation programs and that type of thing" is always a good call, business leaders should try to keep such policies non-invasive.

While "in most states, the employer has control over the actual workplace [and] there are laws that prohibit smoking in offices and public spaces ... you cannot discriminate against someone for smoking on their own time," he says. In 29 states, that is the law.

In those states, "lifestyle laws," Bostic says, "basically put smokers into a protected class - similar to being protected by your ethnic background or country of origin. This means that you can't take smoking into account with promotions, hiring and firing."

Ironically, Bostic continues, despite protections for smokers, "You can [legally opt to] not hire someone because they're blonde in most places."



Laws are 'toothless'

However, Bostic asserts that smoker protections are little more than a legal nuisance for employers, saying "many of the laws are toothless and easily avoided." Virginia's statute applies only to state employees, for example, and New Hampshire's has long been dodged by employers who simply ban workers from coming in with detectable tobacco odor, or "thirdhand smoke."

Many of the states with laws protecting smoking (including Illinois, Minnesota and Montana) still allow employers to charge smokers higher health care premiums. Others, such as Tennessee, Colorado and Louisiana, only apply their protections to current employees, not future hires.

Still, Thurman says, companies should be mindful of their state's restrictions, particularly in the hiring process. In job announcements, he says, "Don't put in stuff like 'non-smokers preferred,' because you're creating a record." In addition, he advises multistate employers that "anytime you are introducing a policy that's going to apply to multiple facilities, [make] a habit of checking things like vacation policies [and] schedules for paying wages, but [don't] forget about these lifestyle law issues, because what would be legal in Michigan would be illegal in New Jersey."

For employers operating in a state with lifestyle laws but that still want to encourage better health, "the best [thing to] do is highly encourage employees to quit," Bostic says - meaning, quit smoking, not quit their job.

Some experts, however, see a slippery slope in efforts to ban smoking from workers' lives. Yes, it could reduce health care costs, they say, but so could policies that forbid skiing, eating ice cream or watching four hours of TV each night. Where do employers draw the line between curbing costly behavior and Big Brother-like control over people's personal choices?

R. Joseph Barton is a partner with Cohen Milstein who specializes in employee benefits law. He says "wellness programs" that "require someone to verify that [an employee] is not using tobacco" have transgressed into privacy intrusion.

"I think there's two different questions," Barton says, the first being "whether or not you hire someone because of things that they do outside the workplace that don't interfere with their job. And it's my opinion [that it's] not the employer's business any more than saying 'I'm not going to hire people because they ride motorcycles, because I think that's a dangerous activity.' You know there's a whole host of things that [one could] consider unhealthy. If it doesn't interfere with their work performance, why does the employer have a say on it?

"The second question is: Do you want to encourage people to engage in more healthy behavior? And to the extent that you encourage that, I think that is fine."

Put simply, Bostic advises benefits professionals to "do everything you can to help your employees be smoke-free, but don't vilify them." He also notes that while the United States has done a good job reducing tobacco use nationwide, the opposite is true globally.

"The World Health Organization estimates that 100 million died in the 20th century from smoking," Bostic says. "They estimate [that] this century, it'll be a billion."

And that brings us right back to where we started - cost: cost of human lives, cost to society at large and massive medical costs. Surely any employer out to eradicate smoking would cite cost as among their primary motivators, but advocates like Barton are far from convinced. "That is an argument," he says. "Whether or not it's legal is another question."

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