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.
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