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by Rosanne Cassidy Mesce, SPHR, Director, Human Resource Services
Published February 6, 2005
A Michigan company, Weyco Inc., has made national headlines by firing employees who smoke. We’re not talking about firing employees who disregard posted non-smoking signs on company property. Weyco’s policy dictates that employees are not allowed to smoke. Period. Employees found in violation of this policy have been fired.
Some believe that the policy will be challenged. The American Civil Liberties Union has gone on record denouncing the company’s actions. However, they admit that it’s possible that legal challenges will fail since there is no federal law banning such a practice nor does Michigan have any statutes protecting smokers’ rights. Others have indicated that the practice may be challenged as a violation of the Americans with Disabilities Act, although proving that smoking is a disability would appear to be an uphill battle.
Weyco, based in Okemos, MI, can be credited with giving employees plenty of advance notice. Employees were told in 2003 that the company would be moving in this direction. Weyco offered smoking cessation programs to smokers. They also stopped hiring smokers. The headlines came when they fired employees for refusing to submit to a nicotine test to prove that they were tobacco-free.
The company’s homepage states, “Weyco, Inc. believes in having a proactive plan for promoting healthy lifestyles for employees. Healthy employees are more productive and, long term, healthcare costs can be lessened.”
Illinois employers face restrictions that do not exist in Michigan. The Illinois Right to Privacy in the Workplace Act makes it “unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.”
The Illinois Administrative Code states that “lawful products shall include, but shall not be limited to, all tobacco products, all alcoholic beverages, all food products, all over-the-counter drugs, and any drugs lawfully prescribed by the employee’s own physician. Provided, however, that any use or over-consumption of these lawful products that directly impairs the performance of the employee at the workplace shall not be protected under this Act.”
While it will be interesting to see how things play out at
Weyco, Inc., employers with operations in Illinois must limit smoking prohibitions to
policies that prohibit use of tobacco and alcohol on company property or on
company time. Employers with operations outside Illinois should be aware that
there are twenty-eight other states that have laws protecting smokers' rights. Any
consideration of policy changes in other states that would negatively impact
smokers should be accompanied by research into state and local statutes covering