01/27/2020 Molly Moseley

Smokers rights in the workplace are getting cloudy

Long gone are the days of colleagues puffing on cigarettes around the water cooler like characters from Mad Men. And while it’s unlikely your colleagues will be passing a joint around the office instead, employers have started shifting their policies around smoking in contradictory ways.

It all spurs from an interesting dichotomy between tobacco and marijuana use in the U.S. right now. Despite being illegal for recreational use in more than half of states, marijuana proponents earned legislative success in 2019, while legal tobacco use saw progressively more restrictive legislation. Just this month Illinois became the 11th state to legalize recreational marijuana use. In contrast, last month the legal age of nicotine smoking in the U.S. increased from 18 to 21

This scenario is playing out in the workplace as well. Effective in February, U-Haul will no longer hire nicotine users in 21 states. This policy is part of ongoing efforts to encourage better health and foster a “culture of wellness” at U-Haul. 

While 29 states and the District of Columbia do have “smoker protection laws” preventing discrimination against candidates for using tobacco products, the state of Arizona, where U-Haul is headquartered, allows employers to test candidates for tobacco use and exclude those who do.

Employers like U-Haul are reasonably concerned. Cigarette smoking is the leading cause of preventable disease and death in the U.S. Tobacco smokers cost employers on average $6,000 more each year in medical expenses. But on the flip side, it is also illegal to discriminate against a candidate based on a medical condition, making exclusion based on smoking confusing and complex. 

On the flip side, employers are rethinking their views on marijuana use as well. In January, Nevada became the first state to make it illegal for employers to discriminate against candidates who use marijuana

Some employers have also started to see drug tests as an unnecessary cost, especially since many struggle to hire workers in the tight labor market. With the number of workers and applicants testing positive for marijuana at a 14-year high, removing restrictions enables employers to expand their candidate pool and make necessary hires. 

Re-evaluating policies around drug screening and hiring will continue to evolve as new legislation comes online. It will be increasingly important to stay abreast of changes, ensure compliance, and avoid risk. 

(Featured image: “Mad Men” from AMC)

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