A Pack A Day Keeps the Jobs Away…

NYT recently published this article about employers — particularly health care employers — adopting policies that they don’t hire smokers.

Lawyer: I have no problem with this as comes to healthcare organizations.

Nurse: In general, it seems like if an organization’s mission is to promote health, then it’s reasonable to expect its employees to uphold that to an extent– not smoking at work, on the grounds, etc, but really, isn’t what they do at home their own business if it’s not illegal or damaging to the company? I guess there’s an argument to be made that it is damaging to the company, both in terms of image/mission and in terms of finances, but. . .  shouldn’t there be a line between our work lives and our personal lives somewhere? Where? When we sign on to work for a company, we aren’t signing away all of our lives and our time.

Lawyer: Sure, but isn’t there an argument that you’re not just choosing to smoke sometimes — you become a smoker? Given that it’s addictive, and we’re not really talking about the occasional — or even daily — cigarette, but rather a habit?

Nurse: Generally speaking, we can do things that are bad for us, right? We can eat too much cake, we can drink to excess, we can stay up too late. . . and if it doesn’t bother other people, who cares? So when is somking crossing that line, if it’s not during work hours? It might, but. . . when?

Lawyer: Can you tell if someone is a smoker? Smell of smoke, etc? Maybe there would be an argument for an honor system rule, but not for testing for nicotine at random and firing people for testing positive. I’d be interested to get your take on whether the American Cancer Association could do this. If they can, are hospitals really that different?

Lawyer: Also, this quote just kills me:

“If enough of these companies adopt theses policies and it really becomes difficult for smokers to find jobs, there are going to be consequences,” said Dr. Michael Siegel, a professor at the Boston University School of Public Health, who has written about the trend. “Unemployment is also bad for health.”

Um, so… quit? And then you can be double-healthier. People who are characterizing this as discrimination are missing a major point about discrimination: smoking is a behavior. It’s something you decide to do or not do — not a quality that you have and cannot change, such as race, gender, sexual orientation, national origin, arguably religion — the things we forbid discrimination against.

Nurse: I agree that it is not discrimination based on an innate charactaristic, which is all well and good, but. . . legally, can a company discriminate on anything it wishes outside of a few specific things? Can we refuse to hire people who smell bad (not unrelated. . .)? Or people who are alcoholics? What about people with terrible fashion sense? What about morbidly obese people?

Lawyer:  Here are the rules:

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Non-protected reasons for preferring one person over another? a-ok. It’s not illegal to prefer some people over other for reasons not on this list.

Nurse: If so, then, sure, have at it. If you don’t like it, don’t work there, or else quit smoking, or learn to hide it. At my job, they do random drug testing. So I don’t use drugs, and if I do, I accept that I could get caught and I could be terminated. If I wasn’t willing to accept that, I would work somewhere else.

Lawyer: Slightly different there, because drugs are illegal, right? I mean, they have a colorable claim that they’re firing you for violating drug laws. Or  that it’s totally reasonable to keep you away from the cabinet where you keep the vicodin — that you are uniquely unqualified. And perhaps more importantly, you have no claim that you have a right to do drugs.

This type of project seems to have three motivations:

Economic: (cheaper to run, since employees are healthier and more productive)

Image: health care facilities, at least, are trying to help people be healthy… isn’t unsettling to see people in scrubs outside smoking?

Public Health: Reduce smoking in general

Nurse: I think the economic incentive is crystal clear. In terms of image, that seems reasonable. It also matters in jobs like nursing because let’s be honest, who wants someone who smells like an ashtray leaning over them for 12 hours when they don’t feel good to begin with? I’m not just being rude, I’ve had patients ask me to have a particular tech stay out of their room for just that reason.  In terms of public health. . . I’m all for a lot of public health efforts, I think it’s great that you can’t smoke in bars an all that, but when is an employer being too paternalistic? I would resent it if my boss was allowed to fire me if I got a speeding ticket, wasn’t wearing my seatbelt, got drunk on a saturday, or had unsafe sex. Those are public health issues, too.

Lawyer: I’m curious — what do you think about a church refusing to employ a secretary who is unmarried and cohabitates?

Take two of these, and hope you don’t get fired.

NYT reports today about some companies who have started including prescription drugs in their random drug testing, and dismissing employees who test positive EVEN WHEN THEY HAVE A VALID PRESCRIPTION.

Nurse: So, random drug testing at work is not news, nor is the fact that these tests often include presription drugs– but what IS significant about this case is that having a valid prescription does not get you off the hook. There are a lot of problems with that, obviously– some drugs are tested for when others are not, people with a legitimate need for a drug can be fired for using it, people who are able to perform their jobs safely are fired out of concern that they could potentially at some point be impaired, maybe others too . .. ?

Lawyer: Also some privacy concerns — your employer doesn’t have a right to know your private health information, whether or not they use that information to fire you. Might deter people from taking their prescribed drugs because they’re afraid of losing jobs.

Nurse: It seems like the entire thing could be conducted through a third-party company. . . and IF the employer was not firing people for legal precriptions they would never know about them, which makes sense. But you’re right, it seems like a privacy violation for your employer to test your urine for various substances that you have a right to use, legally speaking, and then fire you for it, especially because they cannot prove that you are using them at work. If you take a vicodin after work, your urine will test positive for hydrocodone. that’s even less your boss’ business than if you took one at work. Now, this isn’t totally screwball, because there are legitimate concerns that an employee of say, an auto plant could be a danger to herself and others if she was impaired. Many of the medications under discussion (like hydrocodone and oxycodone, which are the narctocics in vidodin and percocet) legitimately can impair your ability to operate machinery, and they are labeled as such.  So sure, I understand the concern.

Lawyer: But. . . is the situation such that one could be a danger to others without exhibiting any signs whatsoever of altered behavior? Is this an across-the-board kind of effect? Nobody can drive safely when intoxicated — but do these drugs affect everyone that way?

Nurse: Well, no, and it matters how  much you’ve taken, what your tolerance is, and your general suceptibility to those side effects. Some people will be totally safe and some will be impaired. But what troubles me is that it is widely practiced to test if there’s cause to do so– someone is behaving strangely, appears impaired,  etc. Why do employers feel this is insufficient? Do they have a leg to stand on, legally? Is it really safer to use random tests than targeted ones?

Lawyer:  I agree that this is very troublesome, especially in jobs that don’t seem to have abnormally high safety risks. The question about a leg to stand on legally is a tricky one, and the NYT article starts to get into some of the problems.

The biggest one that occurred to me on a skim-through was the Americans with Disabilities Act — which forbids employers to fire people for having any kind of disability that don’t significantly interfere with their ability to do their job and even requires the employers to make any reasonable accommodations necessary for disabled employees to work there.
So if you have an employee who needs a strong pain medication. . . you see where I’m going with this. They need a reasonable belief that the person’s condition is interfering with their job. Hence, no need for random testing. Let alone firing.  It seems like they are moving to suggest that a positive result on a random drug screen might constitute grounds for reasonable belief that the person cannot do their job. Nurse, is this feasible? (this is probably shaped by the answer to my question above.)
Nurse:I agree with you that the present standard addresses this. If they have data that shows that a high percentage of employees who are involved in accidents have tested positive for legal precription drugs, then they are adressing a problem (even if they are doing so illegally/imorally/whtever). If not, then they are not, and  this whole thing is bogus.
Lawyer: And yet, the testing is surely expensive, as is the turnover in the work force — they must be finding it somehow worthwhile.
Nurse:And again, if using certain prescription medications makes one inelligible to perform the job, that needs to be an up-front disclosure, right? Ok, so a person with epilepsy cannot be a truck driver. That makes sense. Can a person with pain then not work on an assembly line? If they are going to make that argument, they better do it loudly and before anyone is hired, or has worked there for 20 years. Do you suppose the company in the article has any data to back them up?
Lawyer: This is a good point — if someone does a job perfectly well and safely for 20 years, exhibits no change in behavior, and is fired because of a health condition, that seems pretty indefensible. Changing the rules after someone has made a real investment in signing up with you sure looks bad.
Nurse: Now, I can imagine this being somewhat more complicated among people who have access to such drugs as part of their jobs– nurses, pharmacy techs, etc. For us, a positive drug test is probably somewhat more serious even if there is a legitimate explanation because we are in a position to steal drugs. Having a prescription doesn’t mean you didn’t steal them. I’d like to think people don’t do this, but evidence does not back me up. But even if this more delicate situation, I don’t think it can be justified unless it is proven that your ability to carry out your duties safely is compromised.
Lawyer: I would add that at the very least, I would expect the employer to offer a long-time employee an alternate assignment if they believe a prescribed drug or health condition is interfering with the employee’s ability to safely perform his or her job.
Nurse: Lots of employers, especially in healthcare, offer rehab, repeat testing, etc. for use of illegal drugs or illegally used prescription drugs. That doesn’t make sense if you are talking about a legit precription, but it just goes to show you that there are more lenient pathways that don’t lead to a nation of zombie-employees showing up stoned every day.
Lawyer: Repeat testing doesn’t do the trick here. In fact, this company offered it. But then you’re in a great position: go off the meds your doc prescribed for you for a health condition so you can pass the test, or lose your job.

Supreme Court Score Card #2

Happy July, everyone. We’re now on our second Supreme Court case from the just-finished term. This is fun!

AT&T v. Hulteen: Gotta love a good maternity leave case.  The question was, do employers have to restore continuity of service (for seniority, benefits, pensions, etc.) to women who took pregnancy/maternity leaves BEFORE the Pregnancy Discrimination Act was passed in 1978? The answer: nope, they don’t have to. Because although we see treating maternity leave as different from other leave to be gender-based discrimination NOW, they didn’t THEN, and the law says the company would’ve needed INTENT to discriminate in order for the leave to be restored. Because apparently, if you didn’t *know* it was wrong when you did it, you shouldn’t have to fix it now.

Lawyer says: Feminism Fail!