Part One: Are nonsmoking hiring policies legal and effective?

Elsa Pearson is a senior policy analyst at Boston University School of Public Health (@epearsonbusph).

U-Haul just announced that, effective this month, it will no longer hire individuals who use nicotine products. The company claims the “policy is a responsible step in fostering a culture of wellness” and it seeks “to establish one of the healthiest corporate cultures in the U.S. and Canada.”

Though not common, nonsmoking, or no-nicotine, hiring policies are most likely to be found in health care organizations. For example, the Cleveland Clinic and the World Health Organization implemented such policies in 2007 and 2008, respectively. However, a company outside of health care — Alaska Airlines — was one of the first implement such a policy in the U.S., declining to hire tobacco users since the mid-1980s.

U-Haul’s recent decision reignites the debate over whether such hiring policies are legal, effective, or ethical. I’ll cover these issues in two posts. This, part one, will explore the legality and effectiveness of nonsmoking hiring bans and part two will look at the ethics.

Are these policies legal?

Nonsmoking hiring policies are allowed in 21 states (so, U-Haul’s policy is only enforceable in these states). The remaining 29 states, collectively home to more than half the country’s population, have laws providing legal protection to smokers. The rationale for these legal protections typically falls into one of two categories: anti-discrimination (not hiring smokers violates equal employment opportunity laws) or privacy (smoking is a personal choice).

In these states, employers are not allowed to discriminate against smokers because of off-the-clock activities. In general, employees cannot be fired and applicants cannot be refused employment for legal tobacco use. However, employers are permitted to maintain smoke-free campuses. Each state’s policy is different and there are exceptions. For example, some states with “smoker protection” laws still allow religious organizations or certain nonprofits to not hire smokers.

There are no federal labor market protections for smokers. Some argue the Americans with Disabilities Act could be extended to those addicted to tobacco, though it still would not cover casual tobacco use.

Are these policies effective?

Measuring effectiveness depends on the outcome of interest. It’s plausible companies save money by not hiring smokers, since they tend to need more medical care. And, certainly companies achieve a healthier workforce, if only by direct exclusion of a population. (After all, a company that would not hire diabetics or those with high blood pressure — were that legal — would also achieve a healthier workforce.)

It’s unclear if companies would cause the general population to use less tobacco if they didn’t hire those that do. There just isn’t much research available given how rare these hiring policies are. However, there are a lot of data on the positive impact of various smoking restrictions, such as bans in public places and cigarette taxes. Significant policy differences aside, this may be the best comparison we have to decide if nonsmoking hiring policies could yield similar results.

In general, research on smoking restrictions suggests they lead to less smoking and, consequently, better health. A literature review including 77 studies found that smoking bans reduced exposure to secondhand smoke, improved cardiovascular health outcomes, and decreased smoking-related mortality. Another study found that, when implemented together, smoking bans and cigarette taxes led to a reduction in smoking prevalence.

Researchers found that public venue smoking bans in Switzerland also reduced smoking prevalence, but not until a year later. The delay suggests implementation of smoking restrictions may not occur homogeneously throughout a community (be it a country, state, etc.), a worthwhile consideration for policymakers. Another possible explanation is that quitting is hard and it may take time for people to do.

Spain implemented two smoking bans in 2005 and 2010, effectively prohibiting smoking in all public venues, including some outdoor areas. Subsequent research found the bans led to a decrease in smoking prevalence, the number of cigarettes smoked per day, and the use of commercial tobacco products. Self-reported exposure to secondhand smoke also decreased. A separate study found hospital admission rates related to cardiovascular diseases decreased after both bans were implemented.

Like all policies, smoking restrictions can have unintended consequences. When studying campus-wide smoking bans at Dutch high schools, researchers found that more students were likely to start smoking 18 months later at schools with smoking bans compared to schools without bans. Another study found that while college students smoked less and less often after the implementation of a smoking ban, they started drinking more often. Lastly, the Spanish smoking bans led to an increase in the use of hand-rolled tobacco products.

Equally important are the studies that showed smoking restrictions produced mixed results. A review of 17 studies on various smoking restrictions came to inconclusive findings; while the researchers found positive effects associated with smoking bans at universities, health care facilities, and prisons, they concluded there were likely confounding factors and the quality of evidence was low overall.

Of course, there are caveats. First, nonsmoking hiring policies target a different demographic than smoking bans on school campuses. Second, because they are rare, one could argue a smoker could easily just find a job with another company. But should these policies become more prevalent, choice of employment would become more limited and the consequences more significant — simply not working is typically not an option.

We’ve determined nonsmoking hiring policies are legal (in some states) and they might be effective, given the research available on other types of smoking restrictions. Part two of this series will explore whether they are ethical.

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