By JEREMY W. PETERS (NYT) 1190 words
Published: February 8, 2005
Warning: Cigarette smoking may be hazardous to your job.
That is what employees at Weyco, an insurance benefits administrator in this small central Michigan town, found out.
Under a new policy that legal specialists say is the first of its kind, Weyco began testing its 200 employees for smoking in January. And the company put workers on alert: In the future, they will be subject to random testing. If they fail, they will be fired.
Rather than take the mandatory breathalyzer test, four employees left the company.
And while Weyco's strict no-smoking policy is drawing the ire of civil liberties groups, it is within the bounds of employment law in Michigan. The state is one of 20 that has no laws preventing employers from firing workers who smoke even when they are not at work.
''What's next?'' Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, said, speculating on other behavior that could cost workers their jobs. ''Sitting in the sun? Getting pregnant?''
In fact, employers in 46 states have significant legal leeway to tell workers what they can and cannot do once they leave the office. As a result, companies have done more than tell workers not to smoke.
Until the mid-1990's, the airlines enforced policies that limited how much a flight attendant could weigh. In the 1980's, Electronic Data Systems, the computer software company founded by Ross Perot, had a policy barring facial hair, and fired an employee who said that he wore a beard for religious reasons. In 1989, a company in Indiana fired an employee for drinking after work, a violation of the company's no-alcohol policy. And just last September, a company in Alabama fired a woman who drove to work with a Kerry-Edwards bumper sticker.
But firings for behavior away from work have been isolated, and legal specialists say that no company has ever gone as far as Weyco.
''They're actually testing,'' said John F. Banzhaf, a professor of public interest law at George Washington University and the executive director of Action on Smoking and Health, an antismoking group. ''Most of the companies as far as I know simply passed the policy and rely on the fact that employees made the pledge.'' Employers have targeted smokers for years. Since the mid-1980's, Alaska Airlines has refused to hire smokers and tells job applicants that they will be tested for nicotine use. In 2004, Union Pacific decided to stop hiring smokers and now asks applicants to disclose whether or not they smoke. But these companies and others that prohibit their workers from smoking rely on their employees to honor the policy. As long employees have said they do not smoke, that has been proof enough.
Activists for workers rights argue that unless employees are engaging in off-duty behavior that interferes with their work, employers have no business stepping in. In 30 states and the District of Columbia, it is illegal for companies to impose smoking bans on their employees when they are off duty. And while 13 states prevent companies from banning alcohol use off the job, only California, Colorado, New York and North Dakota have broader worker privacy laws that prohibit employers from regulating most legal activities when their workers are off the job.
''Once you cross the line and allow employers to control any type of behavior that's not related to job performance, there's no limit to the harm that can and will be done,'' said Lewis Maltby, president of the National Workrights Institute, an employees' rights organization based in Princeton, N.J.
