Lawyers Smolder over MI Firm's No-Smoking Policy

January 25, 2005 ( - Employment lawyers are up in arms about a decision by a Michigan company not to hire smokers, charging that the policy is blatantly discriminatory.

Opponents say that such a personnel approach – which also forces all employees to be tested for tobacco use – goes legally overboard because it regulates smoking, a legal activity, the National Law Journal reported.

But the company asserts that it is within its rights. Attorney David Houston, who helped draft the no-smoking policy for Weyco Inc., a medical-benefits administration company in Okemos, Michigan, said Weyco’s CEO wants to create a healthy workforce. “The CEO is extremely committed to having a healthy work force … and he’s using his company as a guinea pig for this policy to show employers that this tobacco-free policy can be implemented successfully,” Houston told the Law Journal.

For his part, company founder Howard Weyers has said the anti-smoking rule was designed to shield the firm from high health care costs. “I don’t want to pay for the results of smoking,” he said in a separate news report.

The rule led one employee to quit before the policy was adopted. Four others were fired when they balked at the smoking test. Chief Financial Officer Gary Climes estimated that 18 to 20 of the company’s 200 employers were smokers when the policy was announced in 2003. Of those, as many as 14 quit smoking before the policy went into effect. The company offered them help to kick the habit, he said.

But those on the other side argue what’s happening at Weyco goes beyond an employer wanting good health for its workers. The non-smoking approach effectively monitors what people do outside the workplace and discriminates against their lifestyles, a practice that is banned in 29 states that have smokers’ rights statutes, Michigan is one of 21 states that do not have such laws. Others include California, Florida, Ohio and Texas.

“To have an employer monitor legal behavior is going over a line that we just can’t cross. It’s going toward that Big Brother mentality that we just need to stay away from,” asserted attorney Joni Thome. “What’s next? Are they going to tell me who I can and can’t talk to? Or you can’t eat fast food? Come on.”

Weyco is not the first company to go down this road. Last year, the Union Pacific railroad company in Omaha, Nebraska, announced a no-smoking policy for all employees, both on and off premises, and questions potential hires about smoking on applications. Also, Alaska Airlines, which has a similar policy, requires job applicants to pass a nicotine test before they can be hired.