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Is it legal?

Yes it is legal to implement a smoke free environment policy. There are no legal prohibitions at non-union facilities and in union facilities it needs to be negotiated.

What about not hiring smokers or terminating current employees who smoke?

  • The “Lifestyle Discrimination” protection state law-to date there is no statute in the state of Massachusetts, but the practice is banned in CT, RI, NH and two dozen other states;

  • The ADA/state disability law protection (based upon “perceived disability”) – no recognized claim to date;

  • Disparate Impact (Title VII and MGL. Chpt. 151B) – no recognized claim to date;

  • Privacy Violations (MGL. Chpt. 214, 1B) – no recognized claim to date;

  • NLRA: limited risk, however there is no requirement to bargain over screening requirements for applicants with respect to not hiring smokers. However, if terminating current employees who smoke the employer must first negotiate this policy with the Union(s).

Can you charge differential health insurance premium rates to people who smoke?

There is not a Massachusetts state law that prohibits this practice. There are Federal law considerations which include the HIPAA regulations:

Under HIPAA, a participant in a group health plan is protected from discrimination based upon "health status."  The U.S. Department of Labor (DOL) has interpreted this to mean that an employee cannot be charged a higher premium, co-pay or deductible based on a health factor.  The DOL views smoking as a health factor, because the Diagnostic and Statistical Manual of Mental Disorders lists nicotine addiction as a medical condition.

Therefore, under HIPAA, if an organization wants to impose a premium surcharge on smokers, they can only do so if it is part of a "bona fide wellness program."  There are proposed DOL rules for such programs.  The proposed rules require:

  • That the surcharge be limited to no more than 10-20 percent of the total cost of employee-only coverage;

  • That the program be reasonably designed to promote good health or prevent disease;

  • That any reward (in our case, the removal of the surcharge) be available to all "similarly situated employees."  The DOL specifically states that this means if a person can not meet the wellness program standard (i.e., to quit smoking) because of a medical condition, the person must be given an opportunity to satisfy a reasonable alternative standard.   A reasonable alternative might be for the individual to attend an educational class, or wear a nicotine patch.  Of course, if an employee refuses to go to a smoking cessation class, then that employee will not be entitled to any "reasonable alternative."  The "reasonable alternative" is only available to an employee who can not meet the wellness goal because of his or her medical condition;

  • All plan materials describing the terms of the program must disclose the availability of a reasonable alternative standard.

The DOL does suggest that a physician's note be provided to document those cases where the person can not meet the wellness standard because of a medical condition.

There is limited ERISA risk and the policy is a mandatory subject of bargaining with the Union(s).