Legal questions surround Pima County plans to not hire smokers

Pima County could soon implement a policy that would require current county employees and those seeking employment to submit to a nicotine test. 

Backed by County Administrator Chuck Huckelberry, the proposal – intended as a cost-saving measure that would create a nicotine-free workplace – is still in the initial phase of development and must first be reviewed by the County Merit Commission, the Health Benefits Wellness Advisory Committee, and the Board of Supervisors before approval.

If put into action, the measure would mean higher health premiums for those who refuse to test or who test positive for nicotine.

According to Huckelberry, the proposal would include a 30-percent surcharge for nicotine users in the first year, effective July 1, 2015. That would increase to 40 percent in 2015-16, and 50 percent for 2016-17.

It is estimated that 32 percent of county employees currently use nicotine.

For those applying to work in the county, a refusal to test or a positive test would mean the applicant would not be hired, and would have to wait a year to reapply.

Huckelberry says the county has chosen to pursue these efforts to create a healthier, more cost-efficient workforce.

“The U.S. Surgeon General determined that smoking/nicotine was bad for your health almost 60 years ago, and four of the top five causes of mortality in Pima County are tobacco related,” he wrote in an email. “Second, a healthy workforce means less cost to the organization.”

In a recent memorandum, Huckelberry cited a study by the U.S. Council on Disease Control, which estimates that each smoker costs his or her employer about $3,400 more per year than non-smokers due to lost productivity and medical costs. 

“Because Pima County is self-insured, increases in healthcare costs have a direct negative impact on the financial viability of the self-insurance fund,” the memorandum reads. “Tobacco/nicotine-free hiring initiative promotes a healthier workforce and greater accountability to the taxpayers who ultimately pay for county employees’ medical care.”

Arizona is one of 21 states that do not have any laws protecting smokers’ rights. 

This in mind, Huckelberry said there is little to no likelihood of a legitimate lawsuit arising from the measure, particularly since a portion of the Affordable Care Act includes language also allows organizations to charge a surcharge to smokers.

Fennemore Craig employment  law expert Barney Holtzman agrees for the most part that a lawsuit based on discrimination is fairly baseless, but also says there may be some loopholes.

“The one area that there is risk is in the fact that it’s a county,” he said. “It’s a government agency doing this, and so what comes into play is whether or not these tests that are required could be considered unreasonable search and seizure. It’s a low risk from an employment law standpoint, though, since smokers are not a protected class in Arizona.”

While some are calling nicotine use a disability, Holtzman says it is equally doubtful that a user would find immunity under the Americans with Disabilities Act since they are not a protected class in Arizona.

The most apparent question is whether the issue infringes on individuals beyond the workplace.

“It’s an interesting situation, because in my belief, there is the individual liberty issue that people should do what they want on their free time and that the employer shouldn’t get involved,” said Holtzman. “But as the employer, there’s so much about the risk and increased costs of smoking that it makes sense to do from a dollar issue. Then again, you also have the morale issue of workers to consider.”

Holtzman said it will be interesting to see how the development impacts future policy decisions, and whether this might lead down a “slippery slope.”

“Do they next go after people that are overweight?” said Holtzman. “Of course then you get into the illegal realm, but once you make an argument like this one does on nicotine, does it then become easier to change or bend the law on other issues?”

The proposal is likely to go before the Board of Supervisors sometime in October. 

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