Free to Be Smoke-Free

Jacob Sullum | January 26, 2005

Several people have pointed me to an A.P. story about Weyco, a Michigan health benefits administrator that forbids its employees to smoke. The company recently fired four employees who refused to take a test to determine if they were smoking on the sly. The policy, which took effect on January 1, is aimed at controlling Weyco's health care costs.

Other companies, including Alaska Airlines and Union Pacific, have similar policies. Although the attempt to control employees' off-the-clock behavior no doubt strikes many people as invasive and excessive, this is not the sort of anti-smoking measure that makes me indignant. Companies have every right to set conditions of employment, which current and potential employees are free to accept or reject. If an employer decides that hiring smokers (or fat people) is too expensive, that's his business. By the same token, companies should be free to hire only smokers, or only fat people.

Likewise, many smokers were dismayed by a Maine ski resort's recent decision to ban smoking on its property, even outdoors. Yet a business owner's right to ban smoking is merely the flip side of a business owner's right to allow smoking (which includes the right to make putting up with tobacco smoke a condition of employment). For both strategic and moral reasons, opponents of government-imposed smoking bans should be consistent about defending property rights and freedom of contract.

Comments

DaveInBigD|1.26.05 @ 10:17AM|#

I have no problems with firing known smokers on a legal basis. However, I have serious problems with allowing employers free access to my bodily fluids. If they want to cut back on health costs, make the testing required to get the medical benefits.

Again, I don't necessarily see this as a government policy issue, but I do find Weyco's behavior reprehensible on a personal moral level. I'm not saying "There oughta be a law!" I'm just sayin' "Stop being self-righteous dickweeds who think that you've got the right (non-governmental interpretation of 'right' again) to take a blood test every time you want to make sure I'm not misbehaving."

|1.26.05 @ 10:22AM|#

Right on!

The whole point is being free to choose your own policy, whether it's allowing smoking, an outright ban, or something in between.

I think the ski resort's policy is silly, but there are plenty of other resorts to choose, and thus I'm not bothered by it at all.

I think one small thing that's driving smoking bans is a failure of imagination---i.e. that if there aren't enough non-smoking bars or whatever, it's got to be SOMETHING other than the best way for the owner to do business. For someone like me who is against legislated bans, having counter-examples only strengthens the case that smoking policies should be up to the owner.

DaveInBigD|1.26.05 @ 10:36AM|#

Oh, and I have ABSOLUTELY no problem with the ski resort banning smoking.

Still pissed off about the blood tests, though.

|1.26.05 @ 10:44AM|#

As I understand it, Weyco made the decision because smokers are prone to illness and therefore a cost liability. What if they decided to place similar restrictions on other Employees personal behavior? No skiiers need apply, they could get hurt and miss work costing us money. No contact sports for that matter. No fatty foods or drug use of course. And since homosexuals comprise one of the highest categories of death in young men, perhaps that behavior should be off limits for Weyco employees. Men die before women and blacks die before whites, so I guess Weyco can only have thin, white, heterosexual, non-smoking, plastic bubble living women on staff. Sounds a lot like Hooters.

MP|1.26.05 @ 10:49AM|#

Not that it was needed, but this is yet another reason why health care should not be a deductible business expense, thus removing the incentive for employer provided plans.

ed|1.26.05 @ 10:53AM|#

"For both strategic and moral reasons, opponents of government-imposed smoking bans should be consistent about defending property rights and freedom of contract."

Problem is, too many Americans are wholly willing -- after shockingly little thought -- to give up their property rights (or deny those rights to others) in exchange for a perceived gain or advantage. The "what goes around, comes around" truism is lost on them. They witness -- day after day, year after year -- the inexorable decay of their liberties and they wonder how it happened.

zero|1.26.05 @ 11:08AM|#

This is the kind of thing that lead to prohibition. People took "rum brakes" then promptly fell into the machinery stopping the production line. Mercantilism has brought us the idea that companies can regulate our lives off the clock. Corporations like Governments should be restricted from infringing on our privacy.

If you buy-into the idea that business can, for economic reasons, not higher certain people because of their off time habits then I don't have to employ gay men because of AIDS and black males under 22 because they are more likely to be injured by gang violence.

These companies don't have to offer insurance to everyone and they can make them pay different rates. The insurance companies already do that. The only reason to not higher someone is lack of job skills.

|1.26.05 @ 11:22AM|#

Patrick, you said "since homosexuals comprise one of the highest categories of death in young men..."
citation please.

Mike|1.26.05 @ 11:28AM|#

so I guess Weyco can only have thin, white, heterosexual, non-smoking, plastic bubble living women on staff.

Homosexual women are far less likely to get pregnant (which is risky and expensive) and they have very low STD rates. I think Weyco is headed for an "all lesbians all the time" policy.

|1.26.05 @ 11:40AM|#

I think the policy is ridiculous, even while I acknowledge their right to enact it.

|1.26.05 @ 12:06PM|#

I imagine that AA and UP, being in the getting people and things places on-time business (in theory) take a dim view of staff sneaking off from their duties to suck down some nicotine. The airplanes are smoke-free by federal regulation, and while I'm not sure about freight trains, some of them will have cargo it would be unsafe to smoke near.

Weyco sounds like the WCTU demanding that its employees don't drink.

Kevin

|1.26.05 @ 12:29PM|#

kevrob,

Your points have nothing to do with smoking off the clock. In the UP's case, I'd bet there was some incentive to get rid of some high-salaried (and possibly union) employees; seems sad that you can more easily fire someone for their personal habits outside of the job than you can for actually being a lousy worker.

|1.26.05 @ 12:44PM|#

While it's of course consistent to say that employers should be able to discriminate in the same way private owners of resorts can, the fact is that the law is not consistent. It's legal (from state to state, I believe) to discriminate against smokers in hiring, but not for other behavioural badnesses such as being obese. Same with housing. I cry foul.

|1.26.05 @ 12:46PM|#

I completely oppose this. I've said this before, here, but government is NOT the only organization whose power over those beneath them must be kept in check to ensure a free society.

Consider: for all the reasons why it's stupid and counterproductive for companies to refuse to hire black people, whites-only companies got along fine for CENTURIES until the government forced them to change. (Yes, I know a lot of people here opposed the Civil Rights Act, too.)

Smoking off the job doesn't impact your ability to work while on the job; ergo, it's none of your employer's business.

|1.26.05 @ 12:58PM|#

Homosexual women are far less likely to get pregnant...

Ike was apparently persuaded against a lesbian witchhunt of the WACs by this argument.

|1.26.05 @ 1:01PM|#

Isaac-
Seriously? Or were you making a joke?

|1.26.05 @ 1:22PM|#

Jennifer

According to the story I heard it's true.

Apparently some general or other started in on a tirade about lesbian WACs. Ike responded by ordering that they be found and discharged. His secretary pointed out that a far bigger problem was that WACs were getting knocked up, and not in the English way :), and having to be sent back to the States. He apparently bought the argument that lesbians in the ranks were a sounder asset than preggers straight girls on ships going home.

|1.26.05 @ 1:58PM|#

Patrick, you said "since homosexuals comprise one of the highest categories of death in young men..."
citation please.


xray

My apologies for not being clearer. Using the logic of Weyco as regards smokers, could they not also surmise that AIDS kills more gay men than straight men, therefore it would be wise for them to avoid this insurance risk and only hire straight men.

Just so you know, I am not a fan of any poicy that discriminates, I was just trying to point out how far the 'logic' of Weyco's decision could be stretched. I know the phrase Slippery Slope is over used, but I think it may be appropriate here.

|1.26.05 @ 2:14PM|#

Patrick: Okay I see your point, and I agree with the slippery slope argument. I mistakenly thought you had bought the whole Bill Bennett/Paul Cameron myth abt gay deaths etc.

|1.26.05 @ 3:29PM|#

Companies have every right to set conditions of employment, which current and potential employees are free to accept or reject

Let's not stop at smokers either - I hear that blacks, women and homosexuals are prone to incur higher health care costs - let's keep them out too.

Also children ages 6 to 12 make good workers becuase they are in most cases already covered by their parent's health insurance. Maybe we should ditch those invasive child labor laws?

|1.26.05 @ 3:33PM|#

Isn't one of the fundamental problems here found in the question of 'when may an employer make or assert new rules regarding the outside-of-work behavior of current employees'?
Pretty much all the arguments over these kinds of issues (including the previously much-discussed firing of a worker who had a Kerry bumper sticker on their car) simply assert the right, or lack of right, for an employer to set terms and conditions.
What I want to know is under what conditions is an employer justified in modifying the terms and conditions after the hire?
And what is the appropriate or reasonable response when an employer does modify the terms and conditions in the face of an agreement which neither permits nor forbids these sorts of modifications?
I doubt that most (of us) are concerned about the employers right to not hire smokers. What about the existing employees and the apparent violation of the terms of their contract, even if only implicit, with their employer?

regards,
Shirley Knott

|1.26.05 @ 5:43PM|#

Shirley-
I'm the one who first brought up the Kerry bumper-sticker bit, and the reaction of most of the folks on the thread was that employers have the right to demand that their employees obey their every whim or else be fired and face all the dire consequences thereof. Thus, a Bush supporter was perfectly justified in firing a woman who did her job well but had a Kerry bumper sticker on her car.

Ironically, the topic of the thread was, "How come libertarians keep getting so few votes in elections?" I suggested that it was because many people view libertarianism as the economic equivalent of "Might makes right," and postings which say that employers should have the right to make any demands they please, regardless of whether or not is has anything to do with the job at hand, might also lose points in a political popularity contest.

|1.26.05 @ 7:16PM|#

I used to work for a company that pulled something like this. Usually a symptom of a company that doesn't know how to provide products and services people actually want. I expect many governments will consider these policies.

And I hope they implement them. This would immediately reduce by about 80% the police, DMV, schools, defense, etc. There wouldn't be enough people left to fill all the open positions!

|1.26.05 @ 7:24PM|#

Jennifer, in all fairness, not all libertarians think that it's just peachy if people lose their jobs for smoking, or having a Kerry bumper sticker, etc. Some of us think these things are awful and would support a boycott of these companies, we just fear that making too many laws about it would create all sorts of unexpected consequences.

There's a big difference between "Shut up and take it like a man!" and "That's totally uncool, let's have a boycott and some bad PR for this company!"

Besides, even if I don't support legislative remedies, the employers who do these things had better be damn careful that they aren't violating a contract. In that case I'd be 100% behind a legal remedy.

|1.26.05 @ 7:33PM|#

we just fear that making too many laws about it would create all sorts of unexpected consequences. . . Besides, even if I don't support legislative remedies, the employers who do these things had better be damn careful that they aren't violating a contract.

But consider: according to many posters on the aforementioned thread, a proper contract would have to spell out every little detail of what rights an employee has. Thus, unless my employment contract specifically grants me the right to listen to music when I am at home, say, my employer should have the right to tell me that if he ever learns I listen to music at home I'm fired.

So for unintended consequences, which is most likely to lead to bad things: a few laws (which exact ones are debatable) concerning, say, an employee's right to live his own life outside of work hours so long as his employer isn't harmed; or a situation where ANY employer would have the right to make practically ANY outlandish demand, using the threat of taking away a person's job.

|1.26.05 @ 7:35PM|#

Thoreau-
Forgot to add, there's a BIG difference between requiring certain conditions of employment up-front, versus letting the employer change the rules afterwards, any time he wants. If this company wants to refuse to hire new smokers, fine; but firing the ones already there is something else.

|1.26.05 @ 9:49PM|#

Thanks zero, will and ed for pointing out the obvious problems with this...

I'm amazed at how many people seem willing to concede that an employeer should have the right to regulate an employee's behavior outside of work. What'll be next - mandated exercise and diet plan? no driving over 55mph?

DaveInBigD|1.26.05 @ 10:43PM|#

What'll be next - mandated exercise and diet plan? no driving over 55mph?

This article indicates that this is precisely what's next:
http://olympics.reuters.com/newsArticle.jhtml?type=healthNews&storyID=7440773

From the article:
Next on the firing line: overweight workers.

"We have to work on eating habits and getting people to exercise. But if you're obese, you're (legally) protected," Weyers said.

He has brought in an eating disorder therapist to speak to workers, provided eating coaches, created a point system for employees to earn health-related $100 bonuses and plans to offer $45 vouchers for health club memberships.

zero|1.26.05 @ 11:51PM|#

Jennifer
But consider: according to many posters on the aforementioned thread, a proper contract would have to spell out every little detail of what rights an employee has.

Not quite right. Rights reside with the individual. The Constitution is our contract with the government declaring what rights the government has. A contract with your employer tells them what rights they have not what rights you have. It should always be assumed that the individual holds ALL rights and may give them up for certain benefits. A business does not have inherent rights.

|1.27.05 @ 6:33AM|#

Zero-
I agree wholeheartedly; unless these Weyco employees signed an employment contract stating "I will never, ever smoke," which they did not, then their employer is in the wrong. But according to many postings I've read here before, the OPPOSITE is true: unless a contract specifically grants an employee a right, he doesn't have it.

DaveInBigD|1.27.05 @ 10:31AM|#

By the way, how is this guy any less ridiculous (as in worthy or ridicule) than Bud Selig?