Law column: Some tips on handling smoking in the workplace

One comedian joked that 'a survey has shown that smoking is one of the leading causes of statistics.'

While that is likely true, the reason it is studied so much is that smoking is a very costly habit. The Centers for Disease Control and Prevention says that smoking and secondhand smoke cost the United States $300 billion a year in health bills and lost productivity.

Studies have shown smokers have significantly greater absenteeism than non-smokers: smokers take an average of almost eight more sick days a year than non-smokers.

As with many other states, Iowa prohibits smoking in workplaces, but allows employers to designate smoking areas for their smoking employees. There still remains confusion about how far an employer can go to regulate smoking, however.

Here are some tips:

First, an employer can ban smoking entirely on its own property. An Iowa employer does not have to provide smoking breaks, smoking areas or any accommodations for smokers.

Second, it is legal for employers to charge employees more for health insurance because they are smokers. In fact, the Affordable Care Act, which eliminates discrimination against employees for many health conditions, still permits employers and insurers to increase health insurance premiums for smokers while reducing premiums for non-smokers.

Third, an Iowa employer also may legally decide to hire only non-smokers, and fire someone for smoking — even after work. While at least 18 states prohibit discrimination against tobacco users, Iowa is not one of them.

The American Civil Liberties Union has argued that refusing to hire a smoker constitutes 'lifestyle discrimination,' but it has not been a successful legal theory in Iowa. Rather, employers correctly have argued — and the Equal Employment Opportunity Commission has agreed — that smoking is not a protected class under federal law.

The majority of state laws agree. Only eight states protect employees from discrimination if they use lawful consumable products off duty, which would include tobacco, and Iowa is not one of them.

Employers further argue they are not denying smokers the right to use tobacco products, just choosing not to hire them. Smokers have responded, 'What's next? Are employers not going to hire overly caffeinated people?'

In any event, many employers choose to show some tolerance and consideration toward their smoking employees. Employers know that many smokers really would rather quit, but they are addicted to nicotine.

In addition, employers do not want to lose good talent because of a smoking addiction.

Employers accordingly should avoid browbeating smoking employees and should focus more on following proper management techniques and planning. For example, smokers need to know that other non-smoking employees are watching them. If smoking employees are heading outside for a smoke every hour, it creates the perception of unfairness for other employees that are only allowed certain prescribed breaks.

An employer should consider permitting smoking only during other company recognized break periods. If smokers object, remind them of other smoke-free alternatives such as chewing gum.

Smoke and smokers' breath may be offensive to non-smoking co-workers and customers. To prevent offensive smoke from entering the building, employers should discourage smoking within the immediate vicinity of entrances and exits. Rather, smoking should be permitted only in a designated area away from the main entrance or door to the building.

In addition, consider requiring smokers to use breath mints or brush their teeth after smoking a cigarette and to wash their hands. The company also should make arrangements to minimize cigarette litter around its building.

Despite all the studies done on tobacco use, the American Lung Association says there is no data proving nicotine-free hiring encourages people to quit smoking. Rather, it claims the best practice is to offer cessation programs to your smoking employees.

As any former smoker knows, quitting smoking is very easy. They have all done it a thousand times.

• Wilford H. Stone is with Lynch Dallas Attorneys at Law.