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Smoke-Free Rule Legal, On Table

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By TODD LESKANIC and JULIA FERRANTE

The Tampa Tribune

Published: June 3, 2008

A hiring policy that excludes smokers, now being considered by Pasco County commissioners, is legal and has been implemented in at least one other Florida county.
Sarasota County enacted a similar policy May 19, although the idea had been discussed there for five years, spokesman Warren Richardson said.

The policy, adopted on the order of Sarasota County Administrator Jim Ley, calls for prospective employees to pledge they haven't used tobacco products in the preceding 12 months. They also must agree to a nicotine screening. A positive test result automatically disqualifies an applicant from consideration, Richardson said.

"For us, it's primarily the health insurance costs," he said. "The costs for employers are skyrocketing across the country, so we're all looking for ways to contain those. The other part of it is just the whole idea of employee safety. We owe that safety to our employees regarding secondhand smoke."

Although a policy excluding smokers might seem discriminatory on its surface, the seminal case on the issue allows it, said Mike Masinter, a professor at Nova Southeastern University's Shepard Broad Law Center.

In its 1995 ruling in City of North Miami v. Kurtz, the Florida Supreme Court held that because there is no expectation of privacy in smoking cigarettes, there is no violation of a right to privacy when a public employer refuses to hire someone who smokes.

"There are no protected rights that you have as a smoker that would prohibit your employer from, in effect, discriminating against you," Masinter said.

At a meeting May 27, Pasco commissioners directed their staff and attorneys to research options for such a policy. Commissioner Michael Cox, who sits on the county's insurance committee, came up with the idea during a discussion of the county's health insurance policy.

Cox suggested Pasco officials consider the policy to promote better health and reduce health insurance costs in the long-run.

"It's well-documented that smoking is bad for you," said Cox, a nonsmoker. "This would encourage people who currently work for the county to quit smoking. I believe it could result in savings over time to the taxpayers of Pasco County. ... We're not the first in the world to do it."

Sheriff Yet To See Savings

The Pasco County Sheriff's Office implemented a tobacco-free worker policy in January 2005. Employees hired before then are exempt from the policy, although no one is allowed to smoke or use tobacco products in department buildings or vehicles, spokesman Kevin Doll said.

"We don't hire anybody who smokes, and that applies to any tobacco or cigarettes," Doll said. "And they have to be tobacco-free for six months."

The policy was initiated to promote a healthier work force and for reduced insurance premiums, Doll said. As part of its contract with Blue Cross and Blue Shield this fiscal year, the sheriff's office will receive 30 percent of any underwriting gains. This is the sheriff's first year back with Blue Cross, so the department has not seen any rewards yet.

If an employee is caught smoking, he would be subject to disciplinary action, as with other policy violations, Doll said.

In Sarasota County, enforcement of the policy wasn't even considered, said Steve Marcinko, the county's manager for employee benefits.

"The policy doesn't address if we've got a nonsmoker we've hired that begins smoking," he said. "Essentially, I think what we're doing is clinging to the stats that say not many people are going to do that."

Sarasota stands to save about $3,300 a year each time it elects to hire a nonsmoker over a smoker, Marcinko said. That will add up to big savings as time passes and more nonsmokers are added to the county's work force of 2,100. Current employees who smoke are exempt from the policy.

Eliminating smokers from the candidate pool is just one way to help stem rising insurance costs. In Manatee County, for example, employees are offered a tiered health plan. Nonsmoking employees who follow prescribed health screenings receive the best health benefits, said Bob Goodman, the county's health benefits manager.

Manatee County 93% Smoke-Free

Goodman designed the program and recommended it to Manatee leaders two years ago as a way of promoting a healthy work force and reducing costs. It's working: This year, 93 percent of the county's 3,500 employees are in the "best" plan.

Employees who continue to smoke are eligible only for the most basic benefits, which come with a $1,000 deductible and 50 percent of the first $5,000 of medical bills covered, Goodman said. Those who take a health risk assessment and a betterment class can get the "better" plan, which has a $500 deductible with 80 percent of costs covered. The "best" plan covers all costs.

Smokers may become eligible for the best plan if they take a smoking-cessation class and undergo age-based screenings, such as yearly mammograms and colonoscopies for women and prostate cancer screenings for men.

For the first time this year, employees who elected the best plan had to undergo blood tests to confirm they were nonsmokers, Goodman said. The tests showed evidence of tobacco use in less than 1 percent of the 3,000 employees in the best plan.

"Consumers have to take charge of their lives if they want good benefits," Goodman said. "If they don't want to do it, why should we reimburse them at the highest rate? ... The incentive is, if you're going to get sick, you need a big checkbook and Visa card."

Reporter Julia Ferrante can be reached at (813) 948-4220 or jferrante@tampatrib.com. Reporter Todd Leskanic can be reached at (352) 521-3156 or tleskanic@tampatrib.com.

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