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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| December 19, 2016

CAN SMOKING AT HOME COST YOU YOUR JOB? EMPLOYER REGULATION OF WORKER’S’ LEISURE TIME ACTIVITIES

QUESTION: The company I work for recently moved banning smoking anywhere on company property to a policy that prohibits smoking period. People who smoke will be given three months to quit; if they don’t, they’re fired. Is this legal?

ANSWER: Michigan is an at-will employment state, and employers may fire or hire for any reason, although employers may not make such decisions based on an employee or applicant’s race, religion, sex, disability, pregnancy, age or (in Michigan) weight.

While many states include smoking as a protected category in civil rights laws; Michigan is not among them. Michigan is one of 21 states that allow a business to refuse to hire smokers.

Further, the law allows an employee’s off-duty conduct to be the basis for an employer’s hiring or firing decision where the conduct causes or might cause an economic loss, or where the company’s reputation might be injured. Courts have found in favor of employer’s who fired their workers for such activities as associating with the certain groups (worker’s membership in KKK was damaging to employer’s reputation) or even certain individuals (worker’s extra-marital affair with co-worker grounds for termination where the worker, her lover, and his wife all worked in same department). And where there is clear economic harm to the employer, by a worker’s off-duty conduct, court’s have generally been sympathetic to the employer.

And smoking does cause economic loss to employers: According to a 2013 Ohio State University study, workers who smoke cost their employers an average of $5,800 per year (with a top cost of $10,125 annually) in absenteeism, lost productivity, lost time (smoke breaks), and increased health care costs. Employers are not the only ones to take the costs of smoking into account. Insurers routinely charge higher premiums for those who smoke, a practice followed by the federal government in the likely-to-be-repealed Affordable Care Act which places a surcharge of up to 50 percent for beneficiaries of an insurance plan who smoke.

A policy like the one being instituted at your place of work was the subject of intense debate over a decade ago when Okemos-based Weyco Inc., a medical benefits administrator, banned employees from using tobacco: Those who could not quit smoking were fired. Employees were required to submit to random smoking breath tests. Four employees quit, claiming that the rule violated their right to privacy.

Many argue that allowing employers to discharge workers for an unhealthy lifestyle choice is just the beginning of a slippery legal slope that could allow employers to invade the private lives of their employees by firing, for instance, workers who drink after hours, those whose diets are unhealthy, or who fail to exercise. But workers cannot be fired for being overweight — weight is a protected category under Michigan’s Elliott-Larsen Civil Rights Act. And the cost of obesity, in terms of lost productivity, medical care and insurance is, like the cost of smoking, very high: The medical care costs of obesity were estimated at around $147 billion in 2008 dollars, according to the Centers for Disease Control.

Employers can discharge workers not only for conduct that actually causes harm to the worker, but also for violations of company policy, whether or not the actual violation causes harm to anyone. A recent decision by Michigan’s Court of Appeals upheld the right of an employer to fire a worker who tested positive for marijuana, even where the marijuana had been used legally under Michigan’s Medical Marijuana Act, and there was no evidence that the drug had been used at work, or had impacted the employee’s on-the-job performance. However, the Court of Appeals ruled in that case that the state could not penalize the worker for his legal use of the drug, and upheld the award of unemployment benefits. There could be a lesson here for employers – they can file workers for violations of internal policies, but, where the actions complained of occurred outside the workplace and were legal, they may still have to pay their share of the fired worker’s unemployment.

The bottom line is that while the law does not seem to be on your side, the law in this area is still developing and is subject to intense debate. If you are harmed by your employer’s new policy, you may wish to consult an attorney.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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