NORTHAMPTON — Should a business be able to bar employment on the basis of non-intoxicating — and legal — drug use?
That’s the question on the minds of locals in business, law and government after U-Haul International’s announcement late last month detailing a new hiring policy barring nicotine users from company jobs in Massachusetts and 20 other states.
The company’s nicotine-free hiring policy will begin Feb. 1 in 21 states, including Massachusetts, where it is lawful to deny employment to those who use nicotine. U-Haul, which employs more than 30,000 people across the United States and Canada, called it a step toward establishing a healthier workforce. Current employees will not be screened, but prospective employees will be asked and screened (in states that allow testing) about their nicotine use, the company said.
“We are deeply invested in the well-being of our Team Members,” Jessica Lopez, U-Haul chief of staff, said in the statement. “Nicotine products are addictive and pose a variety of serious health risks. This policy is a responsible step in fostering a culture of wellness at U-Haul, with the goal of helping our Team Members on their health journey.”
U-Haul is far from alone in not hiring nicotine users — many U.S. businesses, some of them health care providers, do not hire smokers, while others levy health insurance surcharges on employees who smoke. But the news shocked many who may not have fully understood the extent to which a business can bar employment on the basis of legal drug use.
Northampton employment and family attorney James B. Winston said businesses in Massachusetts have long been able to implement nicotine-free hiring policies and screen job candidates for various drugs.
“It’s a business, so they’re allowed by the courts to pass any policies they want as long as it’s not prohibited by state or federal law,” Winston said about U-Haul’s no-nicotine hiring policy.
According to Winston, there is currently no law in Massachusetts that provides employment protection to nicotine users. Nicotine use — unlike race, age or gender — is not a protected classification under the law, he said.
But why would a business want to implement such a rule?
A 2013 Ohio State University study attempted to put a price tag on what workers who smoke cost employers and came up with an average of around $5,800 a year — chiefly due to productivity lost to smoking breaks, extra health care costs for self-insured employers, and increased sick time. Although the numbers are subject to dispute, it’s clear smoking comes with costs.
Even so, as an ACLU legislative briefing notes, “Where do we draw the line as to what an employer can regulate? Should an employer be able to forbid an employee from going skiing? or riding a bicycle? or sunbathing on a Saturday afternoon? All of these activities entail a health risk.”
Peter Jeffs of Leeds is a cigarette smoker who believes smoking on his own time is a “freedom” that employers shouldn’t be able to infringe upon.
“I feel like we should have the right to smoke. It’s not an illegal substance; it doesn’t impair my judgment,” Jeffs said Saturday afternoon as he sat on the steps of the Hampshire County Courthouse.
Because smoking and nicotine use could lead to lung cancer and cardiovascular disease, some businesses may try to reduce high health insurance costs and increased use of sick time, Winston said.
“Employers will come up with numbers about how much it costs them when someone’s absent from work, and all of these costs, in terms of replacement costs, add up,” Winston said. “It’s to the employer’s benefit to have a workforce of employees that has less absenteeism and health-related issues.”
Jeffs said he understands why businesses might want to improve their bottom line, but “that still doesn’t give them, in my eyes, the right to make that call. That’s the American way, though ... That’s their corporation.”
Federal data from 2017 shows that 13.7 percent of Massachusetts adults smoke, and 3.3 percent use e-cigarettes. Winston said businesses with no-nicotine hiring policies could be losing out on qualified employees — and small businesses, especially, would be less likely to have such policies since they would narrow candidate pools, take too much time and cost too much money to implement.
“The smaller businesses, a lot of times, just don’t have the resources,” Winston said.
Local businesses react Austin Valle is the general manager of U-Haul of Northampton on King Street and said he thinks his company’s new hiring policy is “a step in the right direction.”
“Any employer that’s willing to step up for an employee’s health and wellness is something to applaud, as long as it’s an open conversation,” he said.
Some smaller local businesses have a different view. When asked if Woodstar Cafe in Northampton bars nicotine users from employment, co-owner Rebecca Robbins was straight to the point: “No, and we never will.”
“We are looking for people who can help us accomplish our mission,” Robbins said. “And whether someone smokes versus not smokes in no way determines their ability to give great customer service or create a great product.”
Robbins echoed Winston’s point that businesses with nicotine-free hiring policies could significantly reduce the pool of prospective employees.
“In the job market right now, it’s especially challenging to find good workers,” Robbins said. “I don’t understand why a company would make it even harder to find employees.”
Nor is Robbins convinced that barring nicotine users from jobs would help cut costs.
“We have all kinds of people on our staff, and some have healthy habits and they’re sick frequently and vice versa,” she said. “I think it’s dangerous to make sweeping assumptions about people and their habits.”
Some of the largest employers in the area, including the University of Massachusetts Amherst, C&S Wholesale Grocers, Pelican, Baystate Health and Valley Medical Group, all said they hire smokers.
According to Kelly Charest, spokeswoman for Cooley Dickinson Hospital, the organization used to administer blood tests to potential employees to screen for nicotine use starting in 2009 but stopped in June 2015. The hospital, like many medical organizations, has a smoke-free policy on its property.
“Cooley Dickinson made the decision to stop screening for nicotine/tobacco at the time of hire in an effort to be as inclusive and diverse in our workforce as possible, and to avoid any possibility that we would lose out on great potential employees due to nicotine or tobacco use,” read a statement from Cooley Dickinson’s human resources department sent to the Gazette.
Mark Larrow is a manager at Stadium Storage in Amherst, which uses U-Haul trucks but is independent from the company. He sees why companies might want to lower bottom-line costs but thinks the policy could backfire.
“Working for U-Haul is, I would say, more of a blue-collar type job,” Larrow said. “It limits the amount of people they’ll be able to hire.”
Dawn Casavant, vice president of external affairs at Heywood Healthcare, said the organization does not hire employees who use nicotine. Heywood Healthcare oversees Athol Hospital and other medical practices in the state, she said.
“Tobacco use is one of the leading causes of preventable death in the United States,” Casavant said. “It makes sense as a health care provider that we set a good example for our community.”
Next steps If not otherwise prohibited by future legislation, employment protections for nicotine users in Massachusetts would likely come through state court rulings on privacy complaints from denied job seekers, said Harris Freeman, a professor of legal research who teaches labor law at Western New England University School of Law in Springfield. Freeman also teaches at the University of Massachusetts Amherst Labor Center.
“It seems that in Massachusetts right now, that would be the only way to challenge this kind of hiring rule,” he said, citing previous state Supreme Judicial Court case law concerning privacy and drug testing.
Freeman said it “makes sense to make sure people are not intoxicated while working … there can be problems with safety, problems with productivity.” But here, “it seems like they’re making a decision that doesn’t directly affect someone’s work performance,” Freeman said about U-Haul.
“This is employers exercising a wide latitude of discretion and control over workers’ lives that have nothing to do with their own business interests,” he said. “Absent some kind of rationale by the employer that certain kind of drug use impacts job performance, the idea of telling people that they can’t take a job because they use nicotine is unduly intrusive into the personal affairs of workers.”
Employees may gain some protection from termination if they’re represented by a union, Freeman said. For prospective employees, state or federal legislation could limit hiring policies. According to the American Lung Association, 29 states and Washington D.C. have laws which prohibit an employer from either refusing to hire a person or firing an employee for nicotine use.
State Rep. Lindsay Sabadosa, D-Northampton, indicated that she believed the Legislature should consider looking into creating employment protections for nicotine users.
“I understand how nicotine is incredibly harmful to our health,” Sabadosa said. “And yet, not hiring someone because of a dependency doesn’t seem like the right approach.”
Sabadosa speculated about whether nicotine-free hiring policies were a way to mitigate health care costs.
“Those costs are becoming greater, and businesses are trying to get them down,” Sabadosa said. “I see this first and foremost as another argument for single-payer,” she said, arguing that businesses and workers alike would see a decrease in health care costs under a system like Medicare for All.
Freeman said the issue still comes down to the fact that, unless otherwise prohibited by law, a private company can set whatever hiring rules it wants.
“Why should nicotine use be a condition of employment?” Freeman said. “You could be trying to get off of cigarettes, and they could still find that you are not. Maybe they start asking for genetic testing for illnesses. We are on that slippery slope.”
Michael Connors can be reached at mconnors@gazettenet.com.