So yesterday, I made a convincing case that employees who smoke outside the workplace can’t be treated differently than your non-smokers. 

But what about your health insurance plans? Doesn’t the state law prohibit your plan from imposing higher premium costs on those smokers?

Well on first glance it appears yes.  The state law would seem to apply.

But, dig deeper (and without getting too technical) and you’ll understand that there is a federal law — ERISA — that trumps that state law when it comes to insurance plans. 

Indeed, back in 2006, the Office of Legislative Research (one of the underappreciated government offices) wrote a report that said exactly that:

You asked if Connecticut law prohibits insurers or employers from factoring in whether a person smokes when determining insurance premiums or employee contributions for health care benefits. …

Connecticut law prohibits employers from discriminating against any individual who smokes outside the workplace with respect to compensation, terms, conditions, or privileges of employment (CGS § 31-40s). The Connecticut Department of Labor (DOL) interprets this law as not prohibiting an employer from having smokers contribute more toward health benefits than non-smokers due to preemption by the federal Employee Retirement Income Security Act (ERISA). To our knowledge, this issue has not been litigated in a Connecticut court. …

Since that time, the question remains undecided, but there is little reason to doubt the conclusion. Indeed, there’s much more to this area than a simple blog post can provide.  But employers who believe in healthy workplaces and want to keep their insurance premiums down do have a small arrow in their quiver to make it happen.

When I was away last week, one of the headlines from my alma mater caught my attention.  The University of Pennsylvania Health System announced that effective July 1st, they will refuse to hire anyone who smokes or uses tobacco.

Smokers’ Rights Continue

No doubt some of you are either lauding this step, or shaking your head in disgust.

Could an employer in Connecticut consider taking such a step? Surprisingly no.

For of all the steps taken to promote healthy workplaces, Connecticut still prohibits employers from making decisions based on an employee or applicant’s outside smoking activities. 

Conn. Gen. Stat. Sec. 31-40s states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.

Note that the restrictions also apply to compensation or other “privileges” of employment.  Thus, employers in Connecticut that want to get on the “wellness” bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements on the state.

And don’t look for any changes in the immediate horizon. A quick review of the Labor & Public Employee Committee book shows nary a reference to changing this law and no proposed bills on the subject have been introduced this year. 

 

 

The New York Times loves spotting trends. Here’s the latest: Workplaces are moving from smoke-free to "smoker-free" places, particularly in the health care arena. 

I hate to break it to The New York Times, but this is far from new. Indeed, nearly three years ago, I blogged about it, noting "there’s been a lot of talk of late of a "trend" beginning where employers are taking stock of employees health habits, particularly smoking." And two years ago, I noted that some towns were considering larger smoking bans

And I highlighted a huge issue for employers in Connecticut — one that is conspicuously absent from the Times’ piece: There are "smokers" rights laws that prohibit many employers from taking action against their employees based on their smoking habits.

Conn. Gen. Stat. 31-40s is fairly clear about smokers’ "rights" and that employers or agents of the employer cannot make no smoking a condition of employment. Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.

Note that the restrictions also apply to compensation or other "privileges" of employment. Thus, employers in Connecticut that want to get on the "wellness" bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements.

(H/T Ohio Employer’s Law Blog)

This week, word came down that several Hartford-area companies were implementing a ban on smoking anywhere on company premises. This means outside areas on the campuses of these businesses, and the parking lots as well.  Previously, employees could smoke in designated areas outside various buildings. 

Yesterday, Bristol started considering implementing a ban on smoking on public streets as well. The Hartford Courant reported on the story here this morning (which includes a short quote from me at the end of the article.  courtesy morgue file "smoking" NOT public domain

Clearly, the trend in Connecticut is to expand the existing restrictions on smoking to areas that have not previously been restricted.

But what is the law on smoking in the workplace?

Back in July, I covered much of this and discussed the fact that while an employer could ban smoking on company premises, it could not prohibit smoking by an employee "outside the course of employment".  For practical purposes, that means that the truck driver can’t smoke while working, but is free to do so at home.

This so-called "smoker’s rights" law is spelled out in  Conn. Gen. Stat. 31-40s and specifies that employers are prohibited from banning smoking outside work hours (though banning smoking on company premises IS allowed, even if the employee isn’t working.) Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.   Employers, however, have broad authority to ban smoking at the workplaces and on their premises entirely, which is the step that several area businesses have now implemented under Conn. Gen. Stat. 31-40q. 

As more and more employers are devising ways to ensure that their employees are healthy, it would be wise for the legislature to review this law again. Perhaps the scope is just right, perhaps not. But until this rule is reviewed and eliminated, employers and local communities may be restricted in what further steps they can take to implement wellness programs and other restrictions.

There’s been a lot of talk of late of a "trend" beginning where employers are taking stock of employees health habits, particularly smoking.  Some employers are even considering a "smoke screen", per this story and this followup as well.   Some other background on employers and smoking policies can be found here, and here.

While employers have the statutory right to control and limit smoking in the workplace, Connecticut employers should be mindful of a state law that restricts an employer’s ability to regulate smoking outside the workplace.

In fact, in Connecticut,  Conn. Gen. Stat. 31-40s is fairly clear about smokers’ "rights" and that employers or agents of the employer cannot make no smoking a condition of employment.  Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part. 

Note that the restrictions also apply to compensation or other "privileges" of employment.  Thus,  employers in Connecticut that want to get on the "wellness" bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements on the state.

As always, getting legal advice to specific issues like regulating smoking outside the workplace is the best policy to avoid liability in the future.