Baylor Tests New Employees for Nicotine

January 1, 2012

Dallas-based Baylor Health Care System (BHCS) announced that beginning on January 1st, 2012, it will no longer hire individuals who use nicotine products. This stance is highlighted on BHCS’s career website which states that, “Anyone who is offered and accepts a position with BHCS will be tested for nicotine” as part of the pre-employment process.

“Policies addressing tobacco in the workplace aren’t new” says Mark Head, Principal Health Management Consultant at Viverae. “It’s been fairly common for employers to impose a health insurance payroll deduction surcharge on tobacco users, but in deciding not to hire them at all, Baylor is sending a clear signal that tobacco is serious business, especially for a health system.”

Although BHCS’s new hiring practice will not apply to current employees who use tobacco, these individuals are already paying an additional $50 per year for health insurance. This figure could increase to $650 in 2012.

The long-term benefits of a program like this can be substantial. Data from the Centers for Disease Control & Prevention (CDC) suggest:

• Tobacco use is the leading preventable cause of death in the United States*

• 1 in 5 deaths are tobacco related*

• Smoking-related illnesses include cancer, cardiovascular diseases and respiratory diseases*

Nicotine in smokeless tobacco may increase the risk for sudden death from a condition where the heart does not beat properly*

*Sources Available Here

What should employers consider before implementing a nicotine-free workplace?

1: Understand the Applicable Laws. Seek the advice of qualified legal counsel to ensure that policies and programs are in compliance with state and federal laws.

2: Create a Policy. Write a Smoke-Free Workplace Policy that is clearly defined, and if applicable, communicates the availability of a tobacco cessation program for employees who require assistance stopping their tobacco use. It is best to implement these types of programs in stages to help ensure that sufficient time is allotted for employees to adopt the new policies and begin preparing for making the required behavior change.

3: Provide Employees with the Right Tools: Offer tobacco cessation programs, subsidize mediations and nicotine replacement therapy options, and provide access to wellness coaches and clinicians.

For more information on Nicotine Testing (Click Here).

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Bon Secours now to testing new hires for tobacco use

December 31, 2011

By Elizabeth Simpson The Virginian-Pilot November 17, 2011

 

Bon Secours hospitals throughout Virginia will institute a “nicotine-free hiring policy” starting Nov. 30, refusing to hire people who test positive for use of tobacco products.

The hospital system, which has facilities in Norfolk, Portsmouth and Newport News, had prohibited smoking and the use of tobacco products on its campuses since 2009, but this takes their wellness initiative one step further.

Current employees will not be affected by the policy. The hospital system, which also has facilities in the Richmond area, will continue to offer smoking cessation classes and other support to help employees quit the habit.

Bonnie Shelor, senior vice president of human resources for Bon Secours VirginiaHealth System, said the policy is an extension of the hospitals’ mission to model good health practices.

“Bon Secours stands for good health, and we believe in creating a culture of wellness,” she said. “Patients come into the organization and we want them to have an environment that is aligned with our ministry of good health.”

Applicants for positions at Bon Secours hospitals will be tested for nicotine as part of the pre-employment screening process.

Bon Secours, which employs 12,000 people, is the first health care organization in the region to implement such a policy, but it’s a growing trend. Tobacco use has been linked to cancer, heart disease, chronic bronchitis, asthma and emphysema.

Martha Jefferson Hospital in Charlottesville adopted a similar policy in 2010, before it became part of the Sentara Healthcare system this summer. Cleveland Clinic stopped hiring smokers in 2007, and Baylor Health Care System in Texas will begin such a policy in 2012.

Sentara Healthcare spokeswoman Becky Lawson said that organization has nothing in the works for a similar policy for its hospitals. Sara Arnold, spokeswoman for Chesapeake Regional Medical Center, said that campus doesn’t either, nor does Eastern Virginia Medical School. Each of those medical campuses, though, is smoke-free, and offers smoking cessation support.

Kent Willis, executive director of the American Civil Liberties Union of Virginia, said there no Virginia laws restricting a company from adopting such a policy. Still, he said the ACLU has concerns about work policies that intrude on an employee’s private life.

“If it’s not prohibited by law,” he said, “can they also dictate what you eat and whether you exercise? When people think about it in that context, it concerns them a great deal.”

Dr. Michael Siegel, a professor at Boston University School of Public Health, said that he supports smoke-free medical campuses but that bans on hiring nicotine users unfairly discriminate against employees for a legal activity they do outside of work.

“It’s making a decision on factors that have nothing to do with qualifications for the job,” he said. “It’s singling out one particular vice and saying, ‘That vice is not OK. You can eat all you want, you can not exercise, you can drink alcohol and not wear a seat belt and that’s OK. You just can’t smoke.’ “

Siegel also questions whether the policy will unfairly penalize people who are using nicotine patches to stop smoking.

Shelor, though, said the policy has been reviewed by internal and external lawyers and also has been vetted by the Catholic health system’s mission and ethical committees during the past nine months. Shelor estimated that 10 percent of Bon Secours employees currently smoke. About 300 employees quit smoking after the system went to smoke-free campuses in 2009.

Applicants who do not pass the nicotine test can reapply for positions once they are nicotine-free for six months. Local Bon Secours hospitals include DePaul Medical Center in Norfolk, Maryview Medical Center in Portsmouth and Mary Immaculate Hospital in Newport News.

Screening out smokers is an idea that struck Virginia Beach employer Jon Wheeler years ago. Wheeler is president and CEO of Wheeler Interests, a shopping center company headquartered in Virginia Beach with 34 employees.

He implemented a no-smoking hiring policy in November 2006 after observing smokers taking cigarette breaks during the workday. He believed that the smell was a turn-off to potential customers and that it took time away from work:

“It became apparent to me that it wasn’t fair to the other associates who were not smoking.”

Wheeler also felt the health problems associated with smoking were increasing insurance costs.

He did some legal research and discovered he could implement a hiring policy that screened out smokers. He doesn’t test applicants for nicotine, as Bon Secours is going to do, but during job interviews he asked them if they smoked.

“I think most people are honest and upfront about it,” Wheeler said.

He said he still has employees who smoke, because they were hired prior to the policy. In one situation, an employee asked if Wheeler would pay the $500 it would cost for smoking cessation classes that used hypnosis. He said he wouldn’t pay the money upfront, but that if she paid for it, he would pay her $100 for every month she went smoke-free until she earned the money back.

She agreed to that, and “to this day, she’s smoke-free,” Wheeler said.

Shelor said that reaction to the Bon Secours policy has been mainly positive from the community, doctors and employees.

“They recognize it’s the right thing to do,” she said. “Yes, there have been people who disagree, but we still believe it is the right thing to do, and we will stay the course.”

For more information of nicotine testing in the workplace (Click Here).

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Smoke-free workplaces cut cardiac deaths

December 30, 2011

ANI Nov 15, 2011, 03.58PM IST

(The study will be presented to the American Heart Association’s Scientific Sessions on Monday in Orlando.)

 

Mayo Clinic researchers have provided additional evidence that second-hand smoke kills and smoke-free workplace laws save lives, by reducing the incidence of and sudden cardiac deaths.

Their research shows that the incidence of heart attacks and sudden cardiac deaths was cut in half among Olmsted County, Minn., residents after a smoke-free ordinance took effect.

Adult dropped 23 per cent during the same time frame, as the rates of other risk factors such as high blood pressure, high cholesterol, diabetes and remained stable or increased.

“This study adds to the observation that smoke-free workplace laws help reduce the chances of having a heart attack, but for the first time we report these laws also reduce the chances of sudden cardiac death,” said Richard Hurt, M.D., director of Mayo Clinic’s Nicotine Dependence Centre.

“The study shows that everyone, especially people with known coronary artery disease, should avoid contact with second-hand smoke. They should have no – literally no – exposure to second-hand smoke because it is too dangerous to their health,” he stated.

The population-based study showed that during the 18 months before Olmsted County’s first smoke-free law for restaurants was passed in 2002, the regional incidence of heart attack was 212.3 cases per 100,000 residents.

In the 18 months following a comprehensive smoke-free ordinance in 2007, in which restaurants and workplaces became smoke-free, that rate dropped to 102.9 per 100,000 residents – a decrease of about 45 per cent.

Additionally, during these two time periods, the incidence of sudden cardiac death fell from 152.5 to 76.6 per 100,000 residents – a 50 per cent reduction.

“Our findings provide support to the life-saving effect that smoke-free legislation can have among community members affected by these laws,” said co-author Jon Ebbert, M.D., associate director of Mayo Clinic’s Nicotine Dependence Center.

For more information on workplace nicotine testing (Click Here).

 

 

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Smoke-Free Work Environment May Prolong Life

December 29, 2011

11/18/2011 ConsumerAffairs.com

 

People who work in smoke-free workplaces may end up living longer, according to researchers at the Mayo Clinic.

Their research, presented at the American Heart Association’s Scientific Sessions this week in Orlando, Fla., shows that the incidence of heart attacks and sudden cardiac deaths was cut in half among Olmsted County, Minn., residents after a smoke-free ordinance took effect.

Adult smoking dropped 23 percent during the same time frame, as the rates of other risk factors such as high blood pressure, high cholesterol, diabetes and obesity remained stable or increased.

“This study adds to the observation that smoke-free workplace laws help reduce the chances of having a heart attack, but for the first time we report these laws also reduce the chances of sudden cardiac death,” said Richard Hurt, M.D., director of Mayo Clinic’s Nicotine Dependence Center. “The study shows that everyone, especially people with known coronary artery disease, should avoid contact with secondhand smoke. They should have no — literally no — exposure to secondhand smoke because it is too dangerous to their health.”

Hurt played an instrumental role in the passage of smoke-free ordinances in Olmsted County and the state of Minnesota. He says evidence from this new study will strengthen efforts by the Global Smoke-Free Worksite Challenge, a recently formed tobacco control advocacy collaboration that debuted at a Clinton Global Initiative event. The Challenge will encourage other countries and employers to expand the number of employees able to work in smoke-free environments.

“We are going to use this information to help us convince corporations — convince countries — that this is the right thing to do to protect the health of their workers and their citizens,” Hurt said.

Learn more about nicotine testing (Click Here).

 

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Mayo study finds Workplace smoking bans have powerful health effects

December 28, 2011

By Susan Perry | Published Tue, Nov 15 2011 9:21 am

 

 The Mayo study is the first to report a link between smoking bans and a decrease in sudden cardiac deaths.

Workplace smoking bans do save lives, according to a new study from researchers at the Mayo Clinic. A significant number of lives, in fact.

The Mayo researchers found that the incidence of heart attacks and sudden cardiac deaths in Minnesota’s Olmsted County (home to the Mayo Clinic) was cut in half during the past decade after two smoke-free ordinances went into effect.

The study’s findings were presented in Orlando, Fla., Monday at a scientific meeting of the American Heart Association.

For the study, the Mayo researchers used data from the long-running Rochester Epidemiology Project to compare the incidence of heart attacks and sudden cardiac deaths during two periods: the 18 months before Olmstead County’s 2002 ban on smoking in restaurants and the 18 months after the county’s 2007 ban on smoking in all workplaces.

The incidence of heart attacks was 212.3 cases per 100,000 Olmstead County residents before the first smoking ban. That rate dropped to 102.9 per 100,000 after the 2007 ban.

The incidence of sudden cardiac death fell during that same period from 152.5 to 76.6 per 100,000 residents.

Smoking rates also went down during the period of the study — but not enough to account for the incidence drops observed in the study, say its authors.

A confirmation of earlier research These findings support earlier studies that also found a link, albeit a smaller one, between smoking bans and a decrease in heart attacks. In 2008, for example, a team of researchers reported that heart attack-related admissions to hospitals in Scotland fell by 17 percent in the 12 months that followed a 2006 ban on smoking in that country’s enclosed public places.

Most of that drop, like the one observed in Olmstead County, occurred among non-smokers.

The Mayo study is the first, however, to report a link between smoking bans and a decrease in sudden cardiac deaths.

Zero exposure is best How does secondhand smoke contribute to heart problems in nonsmokers? The smoke restricts the ability of blood vessels to dilate and makes blood platelets stickier — factors that can lead to the formation of life-threatening blood clots, Dr. Richard Hurt, director of Mayo Clinic’s Nicotine Dependence Center told Pioneer Press reporter Christopher Snowbeck.

Secondhand smoke may also contribute to heart-rhythm problems, the prime cause of sudden cardiac death, Hurt added.

“We’re going to recommend that secondhand smoke be considered a sixth risk factor for coronary disease,” he told Snowbeck. “People should minimize their exposure to secondary smoke, and people with known coronary disease should have no exposure — zero. It’s too dangerous.” The study was funded by a grant from the nonprofit organization Clearway Minnesota.

For information on nicotine testing (click here).

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The Workplace and Nicotine Testing…The Risks?

December 28, 2011

By: Julie B. Ross – Labor, Employment Law and Employee Benefits

 

Should employers with established policies prohibiting on and off-duty smoking implement a nicotine testing policy? There are serious issues that employers should consider before implementing such a policy. Many states, as well as the District of Columbia, have adopted so called “smokers’ rights” laws. These laws prohibit employers from discriminating against off-duty smokers with respect to hiring, discharge, compensation, benefits, and other terms and conditions of employment. Tobacco producing states such as Virginia and West Virginia, have such laws on the books. Thus far, only South Carolina has gone so far as to prohibit mandatory nicotine testing.

In addition to state laws, employers must also consider potential invasion of privacy claims. Invasion of privacy claims often arise when an employer attempts to control the off-duty conduct of its employees. Another important consideration with respect to nicotine testing is the Americans with Disabilities Act (ADA). In addition to prohibiting discrimination in employment on the basis of a disability, the ADA also has strict requirements governing when, and under what circumstances, an employer can require a medical examination. Accordingly, two issues must be considered under the ADA. First, is either smoking or an addiction to nicotine a disability under the ADA? Second, is testing for nicotine considered a medical examination under the ADA? If so, then all of the restrictions and requirements of the ADA must be met. If nicotine testing is not a medical examination, then employers are free to test for nicotine without complying with the ADA’s strict guidelines on testing.

 

No court has yet ruled on whether nicotine addiction is a disability. The Equal Employment Opportunity Commission (EEOC) has stated “unofficially” that smoking is not a disability under the ADA. As to nicotine addiction, the EEOC suggests it may be a substantially limiting impairment in some cases and thus, conceivably, could be deemed an ADA disability. Even so, the ADA clearly gives employers the right to prohibit or restrict smoking at work. Therefore, even if nicotine addiction is ultimately found to be a disability, employers will not be required to provide smokers with a place to smoke as a reasonable accommodation. Nor will an employer be required to provide time off so that an employee can go smoke elsewhere.

 

The ADA’s prohibition on medical examinations varies depending on when the medical examination is administered: pre-offer, after a conditional offer of employment has been made, or during employment. The ADA prohibits employers from requiring applicants to submit to a medical examination before the employer makes a job offer. Once a conditional offer of employment is made, the ADA allows medical examinations if all entering employees in the same job category are required to submit to the examination. Moreover, a post-offer medical examination does not have to be job-related and consistent with business necessity. However, the ADA’s requirements concerning medical examinations of employees are more stringent. Medical examinations of employees must be job-related and consistent with business necessity.

 

There are no reported court cases that address the issue of whether nicotine testing is considered a medical examination under the ADA. The EEOC has published “Guidance on Preemployment Inquiries under the Americans with Disabilities Act” which provides limited guidance regarding what is, and what is not, a medical examination under the ADA. First, the EEOC guidelines define a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The guidelines go on to say that “[i]t is not always easy to determine whether a procedure or test is a medical examination.” The guidelines describe the following factors as helpful in determining whether a procedure or test is medical:

 

Is it administered by a health care professional or someone trained by a health care professional?

 

Are the results interpreted by a health care professional or someone trained by a health care professional?

 

Is it designed to reveal an impairment or physical or mental health?

 

Is the employer trying to determine the applicant’s physical or mental health or impairments?

 

Is it invasive (for example, does it require the drawing of blood, urine or breath)?

 

The key question is: Does a nicotine test seek information about an individual’s health or physical impairment? Employers can argue that the answer to this question is no–that the only information sought is whether nicotine is present in the employee’s system. In other words, the employer is not inquiring about, and does not care about, any resulting health problems or impairments that the nicotine or related components may ultimately cause. The employer simply wants to know if the employee is a smoker or non-smoker; any adverse employment action will be based on the individual’s status as a smoker, not on any resulting physical impairment. This argument may prove effective as long as nicotine addiction is not considered a disability under the ADA.

 

However, whether or not a test is designed to reveal or to determine the existence of an impairment is not the only criterion set forth by the EEOC to determine if a procedure is a medical examination under the ADA. Employer’s must also look to how invasive the test is, who gives the test, and who interprets the results. If the test is performed on an applicant’s or employee’s urine, and the tests are conducted and interpreted by health care professionals or someone trained by health care professionals, then the nicotine testing has affirmatively met three of the five factors considered by the EEOC in determining whether a procedure is a medical test. Depending upon how the courts ultimately weigh the EEOC’s five factors (and what additional factors the courts deems important), this analysis may weigh in favor of a determination that nicotine testing will be treated as a medical examination under the ADA.

 

For an employer choosing to test employees or applicants for the presence of nicotine, the safest course of action is to assume that nicotine testing is a medical examination under the ADA and ensure that all the applicable ADA requirements are met. For example, employers must comply with all the ADA’s requirements regarding confidentiality. In addition, since the ADA only permits medical examinations of existing employees if the test is job-related and consistent with business necessity, employers must be ready and able to articulate why nicotine testing is job-related and consistent with business necessity if it intends to test employees.

 

The ADA’s business necessity requirement will be easier to satisfy than its job-relatedness requirement. No doubt the employer would realize a significant cost savings on its insurance premiums if all its employees were non-smokers, and reduced insurance premiums is a business necessity of almost any employer. An employer who tests its employees to make sure that they are not smoking in order to protect its low insurance premiums will likely meet the business necessity test on the cost savings basis alone. However, in most cases, it will be difficult to show that nicotine testing is job-related. Examples of job-related medical examinations are those involving disabled employees, employees having difficulty performing their job effectively, or when an examination becomes necessary in order to help identify an effective accommodation. In other words, the testing permitted of employees under the ADA typically arises out of some business necessity which directly relates to the individual employee’s job. Broad based nicotine testing of all employees does not fit neatly into one of these typical job-related scenarios since most employees can adequately perform their jobs even with high amounts of nicotine in their system. Accordingly, it may be difficult to establish that nicotine testing is job-related.

 

Several other factors should be considered and addressed before employers implement a nicotine testing policy. First, how sensitive is the test to second-hand smoke? For example, what if a non-smoking employee or applicant lives with a heavy smoker–will the applicant/employee test positive for nicotine? If so, how will this be handled? What if an applicant or employee is using nicotine gum or a nicotine patch in an effort to quit smoking? How do you treat such an individual who would most certainly test positive for nicotine? Will applicants who test positive be allowed to reapply after a certain period of time has passed? Will individuals who test positive be terminated after one positive test, or will such employees be placed on a last chance agreement? Will the employer assist applicants and/or employees who either test positive, or who voluntarily admit to smoking, in quitting? If so, how long is the smoker given to quit? What if there is a relapse? Do employees have an affirmative duty to report to management if they see a coworker smoking or buying cigarettes? If so, what happens to the coworker who fails to make such a report? What if a nonemployee calls in and reports that an employee is a smoker?

 

In summary, many states have no specific protections for employees who smoke, either on or off the work site. Nevertheless, there are potential privacy concerns as well as unanswered questions under the ADA that need to be considered. While addiction to nicotine is not currently a disability under the ADA, at this time it is anybody’s guess whether nicotine testing will, or will not, be considered a medical examination under the ADA if challenged. Nicotine testing of applicants after a conditional offer of employment has been made will probably pass muster under the ADA. The testing of employees is not so clear cut and it may be very difficult to overcome the job-relatedness requirement necessary to require employees to submit to a nicotine test.

 

Contact MedDirect for information on Nicotine Testing (Click Here)

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Firing an Employee for Smoking Outside of Work

December 28, 2011

July 06, 2009

An employer adopted a policy to hire only nonsmokers. After a new hire tested positive for nicotine, he was fired. He then sued the employer,  claiming wrongful discharge and invasion of privacy.

What happened. In an effort to curb medical costs and promote a healthy lifestyle, the Scotts Company in Massachusetts adopted a policy prohibiting its employees from smoking, both on and off work. To monitor compliance with the policy, employees were required to submit to nicotine testing. New hire, “David,” was a smoker, but he never smoked at work or while on company property. David’s mandatory urine test was positive for nicotine, and Scotts immediately fired him. David sued Scotts on several grounds, including that his firing violated public policy and that the mandatory nicotine testing violated the state’s Privacy Act. Scotts moved to dismiss the claims.

 

What the court said. David’s public policy claim was based on his contention that he had a “right” to smoke cigarettes outside of work. The court noted that under Massachusetts law, an “at-will” employee, such as David, can be fired at any time, for any reason, unless the firing violates public policy. The public policy exception is limited to firing an employee for asserting a legal right, performing a legal duty, refusing to commit a criminal act, reporting criminal activity, or assisting a criminal investigation.

 

The court held that smoking was not within the narrow parameters of the public policy exception to the at-will doctrine. It agreed with Scotts that public policy in Massachusetts was less likely to be found in a right to smoke and more likely to be found in efforts to discourage smoking. Thus, the court dismissed this claim.

 

Next, the court examined David’s claim under the Privacy Act. David asserted that he had a reasonable expectation of privacy in information about his legal activities outside of work. The court noted that the Act protects citizens from “unreasonable, substantial, or serious interference” with their privacy. Deciding whether Scotts’ antismoking policy violated David’s privacy required balancing Scotts’ legitimate business interest in “determining employees’ effectiveness on the job” against the seriousness of the intrusion on David’s privacy. Because this inquiry necessitated further factual development, the court denied Scotts’ motion to dismiss. Rodrigues v. The Scotts Company, LLC, U.S. District Court for the District of Massachusetts, No. 07-10104-GAO (2009).

 

Point to remember: Adopting a policy restricting employees’ off-duty conduct may not violate Massachusetts’ public policy.

 

For more information about nicotine testing (Click Here).

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