florida county bans smokers from new jobs

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AlyssaEimers's picture
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florida county bans smokers from new jobs

Florida County Bans Smokers from New Jobs - ABC News

Smokers need not apply in one Florida county, which will soon require prospective job applicants to pass a nicotine test before starting work.
The Board of County Commissioners in Flagler County, in northeast Florida, voted last month to require potential county employees to undergo testing for nicotine use and to pledge in a signed affidavit that they will remain tobacco-free throughout their employment.
But the requirements have raised flags for a civil liberties group that said it is unconstitutional for the government to administer blanket tests for nicotine or drugs on any group of people.
The board chairman, Nate McLaughlin, told ABC News that rising health insurance costs and Flagler County?s generally health-conscious outlook prompted the change. The county offers its employees weight-loss and smoking-cessation programs, and has a nutritionist and exercise physiologist available for staff.
Research has shown smokers hurt employers with lower productivity and higher health insurance. A recent study said they cost employers in the private sector an average of more than $5,800 more per year than non-smokers do.
?At the end of the day, for the taxpayers, it?s a smart business decision,? McLaughlin said.
Other public employers have adopted similar policies, including the county?s sheriff?s department, according to Joe Mayer, the county?s human resources director.
?We?re following our own sheriff?s department, who actually beat us to the punch,? Mayer told ABC News.
Testing would begin Oct. 1 for all applicants who receive a conditional job offer, and would be part of the urine drug screening that the county already conducts. If applicants test positive for nicotine, the county will not consider them for employment for one year after the screening. If a new employee violates the policy, he or she could be fired.
But the policy may run afoul of the Fourth Amendment of the U.S. Constitution, according to Baylor Johnson, a spokesman for the American Civil Liberties Union of Florida. The amendment protects against unreasonable searches and seizures.
The U.S. Supreme Court has, on a number of occasions, struck down blanket testing of public employees and public school students, citing the Fourth Amendment.
Many Florida counties have drug-testing policies that violate these judgments, and the ACLU of Florida has challenged several of those policies and a similar statewide executive order, Johnson told ABC News.
?The government can?t randomly drug test entire sections of the population, whether that?s state employees or people receiving government benefits, without suspicion of wrongdoing,? Johnson said.
The ACLU of Florida contends Flagler County?s policy of drug testing all prospective employees already violates the Constitution.
?What they?ve essentially done is added another possibly unconstitutional provision to an already unconstitutional policy,? Johnson said.
The county?s lawyers are aware of the Supreme Court ruling but still approved the policy, pointing instead to a 1995 Florida Supreme Court ruling that an applicant to a city government job had no reasonable expectation of privacy with respect to tobacco use.
?You have a responsibility to the public,? Flagler County Administrator Craig Coffey told ABC News. ?It?d be no different than doing a credit check on people handling money. ? In this case, it?s a tobacco check.?

Debate - Thoughts? Good Idea or violation of the workers rights?

Joined: 08/17/04
Posts: 2226

Can they do this? Probably. We're not protected on smoking habits.

Should they? I don't think so. Costs of smokers are high but so are obese employees, employees with heart issues, diabetics, people who take several mental health related medications. Is this what they want? I don't quite get why one habit (a legal one) is put out there like that.

Joined: 03/08/03
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"Jessica80" wrote:

Can they do this? Probably. We're not protected on smoking habits.

Should they? I don't think so. Costs of smokers are high but so are obese employees, employees with heart issues, diabetics, people who take several mental health related medications. Is this what they want? I don't quite get why one habit (a legal one) is put out there like that.

I agree completely. It's LEGAL, and it doesn't impair you, and some people smoke their whole lives and never cost one penny extra in health care. It's random and unfair.

Rivergallery's picture
Joined: 05/23/03
Posts: 1301

As if people do not have a hard enough time getting jobs!
craziness.
From what I read the highest majority of smokers are low income as it is.

AlyssaEimers's picture
Joined: 08/22/06
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I guess I am thinking that employers can hire/fire whoever they want. I do think it is kind of rotten though.

ClairesMommy's picture
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"AlyssaEimers" wrote:

I guess I am thinking that employers can hire/fire whoever they want. I do think it is kind of rotten though.

That is just so not true. I don't know why you keep saying that.

AlyssaEimers's picture
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"ClairesMommy" wrote:

That is just so not true. I don't know why you keep saying that.

There are exceptions (such as racism or for being pregnant), but if you were not to give a reason in an At Will area, you could fire someone just because you felt like it.

Joined: 03/08/03
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"AlyssaEimers" wrote:

There are exceptions (such as racism or for being pregnant), but if you were not to give a reason in an At Will area, you could fire someone just because you felt like it.

Not really. You can't fire someone because of their race or sexual orientation or anything like that.

Your Rights as an At-Will Employee

Even if you are an at-will employee, you still cannot be fired for reasons that are illegal under state and federal law. In these situations, the government has decided to make an exception to the general rule of at-will employment.

For example, if your employer is subject to federal and state laws prohibiting job discrimination (as all but the smallest employers are), you cannot be fired because of certain characteristics, such as your race, religion, or gender. (For more information on discrimination, see Nolo's articles on Your Rights Against Discrimination and Harassment.) Similarly, you cannot be fired because you have complained about illegal activity, about discrimination or harassment, or about health and safety violations in the workplace (see Nolo's article Assert Your Safety Rights Without Fear of Retaliation). And you cannot be fired for exercising a variety of legal rights, including the right to take family and medical leave, to take leave to serve in the military, or to take time off work to vote or serve on a jury.

Employment At Will: What Does It Mean? | Nolo.com

This does not mean that employers can arbitrarily fire employees without good faith communication, fairness, and non-discriminatory practices. In fact, courts are increasingly finding for employees in litigation. Employers must demonstrate a good faith effort to correct the employee's performance or the other issues that led to employment termination.

What Is At Will Employment?

GloriaInTX's picture
Joined: 07/29/08
Posts: 4116

This isn't just any employer. I would have no problem if a private employer wanted to do this. But this is a Florida COUNTY. No government employer should be able to discriminate against someone for using a LEGAL substance unless it is something like alcohol that could actually affect their job performance.

ClairesMommy's picture
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"GloriaInTX" wrote:

This isn't just any employer. I would have no problem if a private employer wanted to do this. But this is a Florida COUNTY. No government employer should be able to discriminate against someone for using a LEGAL substance unless it is something like alcohol that could actually affect their job performance.

You think discrimination is okay in the private sector?

GloriaInTX's picture
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"ClairesMommy" wrote:

You think discrimination is okay in the private sector?

Yes I do. If I am a private individual and I am paying the salary I should be able to hire based on any criteria I want except for race/religion/gender which are prohibited by law. If I say only non-smokers and apply that evenly to all applicants it is not discriminatory.

Joined: 03/08/03
Posts: 3187

"GloriaInTX" wrote:

This isn't just any employer. I would have no problem if a private employer wanted to do this. But this is a Florida COUNTY. No government employer should be able to discriminate against someone for using a LEGAL substance unless it is something like alcohol that could actually affect their job performance.

I agree completely.

I wouldn't say I have NO problem with a private employer doing this, but I wouldn't think it's 100% wrong and ridiculous, which I do in this case.

I think, let's say, a health food store or a gym should be able to refuse to hire smokers.

ClairesMommy's picture
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"GloriaInTX" wrote:

Yes I do. If I am a private individual and I am paying the salary I should be able to hire based on any criteria I want except for race/religion/gender which are prohibited by law. If I say only non-smokers and apply that evenly to all applicants it is not discriminatory.

There are many more bars to discrimination other than race, religion and gender. If being a non smoker is NOT a bona fide occupational requirement (like, being the spokesperson for the American Lung Association) then it absolutely is discriminatory. If I go home at night and have a glass of wine with my dinner, maybe two, should my employer have the right to drug test me because they want to have a workplace of non-drinkers only?

GloriaInTX's picture
Joined: 07/29/08
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"ClairesMommy" wrote:

There are many more bars to discrimination other than race, religion and gender. If being a non smoker is NOT a bona fide occupational requirement (like, being the spokesperson for the American Lung Association) then it absolutely is discriminatory. If I go home at night and have a glass of wine with my dinner, maybe two, should my employer have the right to drug test me because they want to have a workplace of non-drinkers only?

Yes, I think they should have that right. If they tell you right up front that they only hire non-drinkers and you will be required to take drug tests to work there then they should be able to do that. If you don't wan't to accept those terms than don't take the job.

AlyssaEimers's picture
Joined: 08/22/06
Posts: 6560

The thing about smoking is that it affects the people around you, not just you. The second hand smoke that lingers on someone can effect asthma. I can understand why an employer would not want a smoking employee. The difference with drinking is that it is not evident later on.

I still think it would be kind of rotten to do. Upon thinking on it further though, I think it should be legal to not hire someone for that reason.

Joined: 03/08/03
Posts: 3187

I think it should have to be because of the type of employment, specifically. Otherwise can't an employer also refuse to hire people who eat peanut butter, or drink coffee?

I think if it makes sense with the particular nature of the workplace, that's different.

Spacers's picture
Joined: 12/29/03
Posts: 4100

"Jessica80" wrote:

Can they do this? Probably. We're not protected on smoking habits.

Should they? I don't think so. Costs of smokers are high but so are obese employees, employees with heart issues, diabetics, people who take several mental health related medications. Is this what they want? I don't quite get why one habit (a legal one) is put out there like that.

Besides the higher insurance costs, there is lost productivity to smoking breaks, health issues for nonsmokers from second-hand smoke, and the lingering stench of smoke when smokers return to work. Many workplaces have adopted an aroma-free policy to protect asthmatics which means no perfumes or scented aftershaves, hairsprays, or air fresheners, so why should someone who stinks from cigarettes be acceptable?

I don't like the random drug testing aspect, and I don't like that employees could be fired (how about automatically enrolled in a smoking cessation class?) but I think as a society we should be doing everything we can to get people to stop smoking, and keep kids from starting, and limiting job opportunities might just work where other things haven't. Tobacco is still a legal product, but I would love to see it much more regulated, much more taxed, and I wouldn't cry a tear over it being banned. I've never understood why marijuana, which isn't addictive and which doesn't cause so many health problems, is still outlawed but tobacco isn't.

ClairesMommy's picture
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"GloriaInTX" wrote:

Yes, I think they should have that right. If they tell you right up front that they only hire non-drinkers and you will be required to take drug tests to work there then they should be able to do that. If you don't wan't to accept those terms than don't take the job.

No employer, public or private, should be even allowed to impose those qualifications. That, in and of itself, IS discriminatory, unless, as I already said, the requirement is directly related to the performance of the job. We're not talking about increased health costs of smokers - this is about intrusion into an employee's personal life and trying to control their use of a legal substance that does is not directly affect their job performance.

Joined: 03/08/03
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"Spacers" wrote:

Besides the higher insurance costs, there is lost productivity to smoking breaks, health issues for nonsmokers from second-hand smoke, and the lingering stench of smoke when smokers return to work. Many workplaces have adopted an aroma-free policy to protect asthmatics which means no perfumes or scented aftershaves, hairsprays, or air fresheners, so why should someone who stinks from cigarettes be acceptable?

I don't like the random drug testing aspect, and I don't like that employees could be fired (how about automatically enrolled in a smoking cessation class?) but I think as a society we should be doing everything we can to get people to stop smoking, and keep kids from starting, and limiting job opportunities might just work where other things haven't. Tobacco is still a legal product, but I would love to see it much more regulated, much more taxed, and I wouldn't cry a tear over it being banned. I've never understood why marijuana, which isn't addictive and which doesn't cause so many health problems, is still outlawed but tobacco isn't.

What if you only smoke at home? That's no smoking breaks, no second-hand smoke issues, no stench, nothing.

The only workplaces I've ever seen with aroma-free areas would be hospitals. I can't imagine being told I couldn't use hair products or perfume at work, that seems outrageous to me.

AlyssaEimers's picture
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"freddieflounder101" wrote:

What if you only smoke at home? That's no smoking breaks, no second-hand smoke issues, no stench, nothing.

Unless you showered and changed your clothes after you left the house, you would still have the second hand smoke on your clothing and in your hair.

AlyssaEimers's picture
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"freddieflounder101" wrote:

, that seems outrageous to me.

It might seem outrageous to you, but a private employer should be able to control their work environment, not the Government. If that was not a policy you supported, than that would not be a good place for you to work.

Joined: 08/17/04
Posts: 2226

If they aren't allowed to smoke at work...that's one thing..no lost income. Or smokers just take their designated break like everyone else.

There's a lot of things people do in their off time (like certain cooking methods/spices) that carry into the day or even the next day! Are we going to focus on heavy garlic eaters?

Spacers's picture
Joined: 12/29/03
Posts: 4100

"freddieflounder101" wrote:

What if you only smoke at home? That's no smoking breaks, no second-hand smoke issues, no stench, nothing.

The only workplaces I've ever seen with aroma-free areas would be hospitals. I can't imagine being told I couldn't use hair products or perfume at work, that seems outrageous to me.

It's very common here, and I've worked in many more places that have a policy than didn't. Every restaurant except one had such a policy, every small office where everyone works closely together had such a policy, and the large office I'm in now has such a policy (but the cleaning people don't, they are a different company) only a few retailers didn't. My university didn't have an official policy, but I had two instructers who asked students to not wear heavily-scented products. Just because you like how something smells doesn't mean the rest of us will. It's nose pollution! Blum 3

I'm fine if smokers keep their smoking at home where it doesn't affect anyone else, and I'm fine with employers passing along any increased premiums for smokers to the smokers themselves. It's when you bring smoke into my workplace, and into my breathing space, that I feel I have the right to comment about it.

ClairesMommy's picture
Joined: 08/15/06
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Out of curiosity, how much does a pack of smokes cost in the US, on average?

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"AlyssaEimers" wrote:

Unless you showered and changed your clothes after you left the house, you would still have the second hand smoke on your clothing and in your hair.

Well...I have my doubts that that actually affects anybody more than a passing odor fairly recently after the smoking took place. But regardless, you could absolutely be someone who smokes at night or before their shower and then comes in.