No-Smokers Policy Spurs Worker Privacy Legislation in Michigan

Michigan state Sen. Virg Bernero believes the eyes of the world are on his state, and he says that's why he's drafting legislation that would make it illegal for employers to make hiring and firing decisions based on a worker's smoking preference.

Inspired by the plight of four smokers Bernero says were fired by Okemos, Mich.-based Weyco Inc. -- a benefit services company that recently grabbed international headlines with its aggressive no-smoking policy -- Bernero, a Lansing Democrat, said he made a pledge to the former employees that he would do everything in his power to protect theirs and other Michigan workers' privacy.

"I think what happened is wrong. I think it's un-American," Bernero said. "I think part of the idea of freedom in America is having your home as your castle, your home as a sanctuary. When you punch out from work, you're off the clock from company control."

Not just a 'smokers' rights' bill

A 2-year phasing out of smokers at Weyco came to a head this past Jan. 1, which was the company's deadline for smokers to kick the habit or seek employment elsewhere. The proposed bill, though, isn't just about protecting smokers' rights, according to Bernero -- who says he's a non-smoker and a "big health advocate."

"[The bill] says you cannot fire a worker for engaging in legal activities outside their workplace unless they directly infringe on your ability to perform your job or there's a conflict of interest with the organization," Bernero said in an interview with Occupational Hazards.com. "I want to take a broader approach than just adding smokers as a protected class."

Bernero says 29 states have similar bills in place that, "to varying degrees, protect privacy."

Weyco founder: Smokers drive up health care costs

Weyco founder and President Howard Weyers contends that workers who smoke are less productive than non-smokers. He also says smokers drive up already ballooning health care costs with their excess medical bills.

"Businesses have the right to protect themselves from the horrendous damages smokers inflict upon themselves and others -- except in states with 'smokers' rights laws,' mostly passed in the early 1990s with tobacco industry backing," Weyers says in a statement posted Feb. 7 on his Web site. He adds that "standard company incentives to quit tobacco haven't worked."

Weyers, on his Web site and in a previous interview with Occupational Hazards.com, said his company always has had stop-smoking programs available to employees, in addition to voluntary wellness counseling and subsidies for health club memberships. But when he found out in 2003 that no Michigan law prohibits employers from making hiring and firing decisions on the basis of employees' smoking preferences, he told his approximately 200 workers that beginning Jan. 1, 2005, Weyco no longer would employ smokers. The media quickly picked up on the story, and both Weyers and Bernero say the BBC has contacted them for interviews.

Former Weyco workers put a 'human face' on story

While Weyers estimates 15 or 20 former smokers at Weyco have kicked the habit since the company announced that smokers aren't welcome there, four did not. Weyers asserts the four workers -- all women -- left the company voluntarily rather than submit to mandatory tobacco testing in early January; Bernero says they were fired. Weyers argues that Weyco made it clear to employees that the company would pay for any stop-smoking programs they chose to participate in.

Regardless, Bernero -- who admits he hadn't been following the story in the newspapers until being contacted by the former Weyco workers -- says a two-hour conversation over coffee with the four women inspired him to take up the cause of worker privacy.

"They certainly put a human face on the story," Bernero said. "These women are average people -- they could be your sister, your aunt, your wife. … They all had good productivity, good job evaluations, and because they couldn't or wouldn't stop smoking, they were fired."

Bernero: Eyes of the world are on his district

Bernero says he's reluctant to use the term "slippery slope," but he still worries that Weyers' no-smoking policy will set a precedent that might embolden companies to make hiring decisions based on factors such as obesity and alcohol consumption -- both of which, like smoking, Bernero considers addictive behaviors.

Bernero speculates that's why this story has caught the attention of the international media, and also why he's been deluged with e-mails and phone calls from people of every political and social stripe -- including "smokers and non-smokers."

"In some respect, the eyes of the country and the world are on my district and Okemos, Mich.," Bernero said. "I don't mean to sound melodramatic, but we do have to be concerned about liberty and freedom. And I think we need a clear demarcation of work time and home time, and establish that home time belongs to the worker and not the company."

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