Smokers need not apply, Indian Trail Improvement District considers telling job-seekers

[rothenbj]

Smoking law: Indian Trail district considering policy not to employ smokers - South Florida Sun-Sentinel.com

"New hires would be required to sign an affidavit saying they do not use tobacco. They could be disciplined, including being terminated, for using tobacco at work or in their personal lives."

"Existing employees who smoke would be given until Jan. 1, 2012, to quit. Then all employees would have to swear they do not use tobacco."

That translates to E Cigs and smokeless since they'll surely test for cotinine.

What has the new world order become?

I love the last line about the company that won their case against a smoker that was terminated in 1995-

"Bans on employees smoking in their personal lives were upheld as legal by the Florida Supreme Court in a 1995 decision involving an employee of North Miami. That city has since discontinued its ban on employees' tobacco use, saying it wasn't saving money with it."

That pretty well tells you that it is just the antis feeling superior.

 

[iJax]

illegal. Even in a right to work state you can't change the rules for one person. they would have to ban the patch, nic gum, chew, snus, vapor with out without a doctors order. they can't say tobacco, then fire for the patch (or vapor).

 

[letsrock0303]

It cam be argued as discrimination which is illegal under affirmative action. Addiction is classified as a disease now. Basically that would be the company denying/firing a person for having a disease. As far as I know that is not legal and will land a company in hot water with the quickness.

 

[jamie]

It cam be argued as discrimination which is illegal under affirmative action. Addiction is classified as a disease now. Basically that would be the company denying/firing a person for having a disease. As far as I know that is not legal and will land a company in hot water with the quickness.

Affirmative Action has nothing to do with disease or addiction and covers specified, limited types of discrimination. Disease is linked to the ADA (Americans with Disabilities Act). And the ADA has its own definition of what constitutes a protected condition. Accomodation for addiction is generally excluded from the ADA because the condition can be halted, therefore it doesn't need to be accomodated.

 

[Vocalek]

Affirmative Action has nothing to do with disease or addiction and covers specified, limited types of discrimination. Disease is linked to the ADA (Americans with Disabilities Act). And the ADA has its own definition of what constitutes a protected condition. Accomodation for addiction is generally excluded from the ADA because the condition can be halted, therefore it doesn't need to be accomodated.

That's easy for them to say.

 

[Thulium]

Affirmative Action has nothing to do with disease or addiction and covers specified, limited types of discrimination. Disease is linked to the ADA (Americans with Disabilities Act). And the ADA has its own definition of what constitutes a protected condition. Accomodation for addiction is generally excluded from the ADA because the condition can be halted, therefore it doesn't need to be accomodated.

That is not correct anymore. In 2008, the ADA was amended to address issues like this: Notice Concerning The Americans With Disabilities Act (ADA) Amendments Act of 2008

The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

• directs EEOC to revise that portion of its regulations defining the term "substantially limits";
• expands the definition of "major life activities" by including two non-exhaustive lists:
• the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending, and communicating);
• the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions");
• states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
• clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• changes the definition of "regarded as" so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead says that an applicant or employee is "regarded as" disabled if he or she is subject to an action prohibited by the ADA (e.g., failure to hire or termination) based on an impairment that is not transitory and minor;
• provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

 

[jamie]

clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active

Thank you for the updated info. Even with the changes though, I don't see how any use of nicotine "substantially limits a major life activity". In fact, I'd say we frequently argue here for the position that it doesn't.

 

[Vocalek]

The impairment is what happens when you are forced to abstain from nicotine. Attention deficits, memory lapses, visual memory impairment, depression, anxiety.

 

[JerryRM]

Let's just call it what it really is, "persecution of a minority". They should all be issued Nazi armbands, they deserve to wear them.

 

[jamie]

The impairment is what happens when you are forced to abstain from nicotine. Attention deficits, memory lapses, visual memory impairment, depression, anxiety.

I understand those things may happen, however I don't think the ADA is generally read that way. Such impairment also occurs when (censor bypass) needle addicts are forced to abstain from the needle. However there will not be a ruling that an employer must accomodate the needle addict by allowing people to inject in the workplace or during work hours. Likewise alcohol for alcoholics that have a high tolerance and may otherwise suffer a DT - they don't get to swig from a bottle at their desk to "relieve their impairment".

This is the dilemma. If it's against the ADA to not hire an active nicotine (or alcohol or needle) addict where the NOT using is the impairment to be mitigated, then all the other facets of the ADA come into play as well and the mitigation (the using of the substance) then has to be "reasonably accomodated" in the workplace. That won't happen.

I'm totally a lay person and know I might be completely wrong about everything.

EDIT TO ADD: The other tactic is to say the employers who won't hire nicotine users are "regarding them" as having a disability and therefore are indeed discriminating under that portion of the ADA, but then reasonable accomodation isn't required. But of course that defeats the purpose... if accomodation isn't required then you'd have to follow the nicotine-free policy of the workplace. So it's rather self defeating for nicotine addicts who have those symptoms of impairment. Keeping the job would require showing that the symptoms didn't meet the criteria of a true impairment after all.

 

[Thulium]

EDIT TO ADD: The other tactic is to say the employers who won't hire nicotine users are "regarding them" as having a disability and therefore are indeed discriminating under that portion of the ADA, but then reasonable accomodation isn't required. But of course that defeats the purpose... if accomodation isn't required then you'd have to follow the nicotine-free policy of the workplace. So it's rather self defeating for nicotine addicts who have those symptoms of impairment. Keeping the job would require showing that the symptoms didn't meet the criteria of a true impairment after all.

I don't see that as being self-defeating. The actions prohibited by the "regarded as" section in the amended ADA is discriminatory hiring practices, and the Indian Trail Improvement District is practicing hiring discrimination against people with disabilities by refusing to hire people for testing positive for medicine used to treat disability. No accommodations need to be made for people who use smoke-free nicotine.

The justification for not hiring smokers is because of research showing that SMOKING can cause disease. Nicotine has not been shown to cause any disease, so there is no reason to discriminate against people who are treating a disease with pharmaceutical nicotine.

 

[Automaton]

Wow. Employers get to tell people what they do when they're off the clock now? Incredible.

What ever happened to just doing your job well? Isn't that what they pay you for? Last time I heard, I'm not getting paid when I'm sitting at home. Why do they care if I'm smoking, or drinking, or doing whatever else? They're not paying me. And this is legal?

Just... I can't even get my mind around that. I really can't.

 

[jamie]

I don't see that as being self-defeating. The actions prohibited by the "regarded as" section in the amended ADA is discriminatory hiring practices, and the Indian Trail Improvement District is practicing hiring discrimination against people with disabilities by refusing to hire people for testing positive for medicine used to treat disability. No accommodations need to be made for people who use smoke-free nicotine.

Thanks for clarifying on "regarded as". That is true about accommodations when smoke-free nicotine products are not banned, however AFAIK most authorities who discriminate generally ban at least some smoke-free nicotine products (if not all) and I'm unaware of a ruling that has struck down that practice, hence my call of self-defeating on a practical level. ADA traditionally has required addicts to follow the same workplace policies as non-addicts.

The justification for not hiring smokers is because of research showing that SMOKING can cause disease. Nicotine has not been shown to cause any disease, so there is no reason to discriminate against people who are treating a disease with pharmaceutical nicotine.

Yes of course, but it's happening in numerous arenas (employment, insurance, college, etc.). Has there yet been even one successful case against this increasingly common practice that is not based on a pre-existing state smoker protection law? Are any of the folks attending local hearings citing the ADA as a reason that nicotine users treating their disability cannot be forced into a workplace smoking area to mitigate their impairment?

AFAIK the history of the ADA & addiction is that mitigation is accomodated within the context of a supervised medical program (rehab, methadone, etc.) Being allowed to use a prescription inhaler for 90 days wouldn't be a big win in my book.

In case this isn't clear - I'm not debating the world as I'd like it to be, I'm just commenting on the world as I understand it to be.

 

[Thulium]

To be clear, I don't know of any case that has been argued against these discriminatory practices on the grounds that it violates the amended ADA so it is certainly possible that judges won't read the amendments the same way I read it as a layperson. With that said, as long as the courts recognize that Nicotine is used to treat a covered disability, pre-employment nicotine screening appears to be outright prohibited by the ADA as it discriminates people for having a disability--regardless if they even have a disability they are being discriminated on the basis of a perceived disability.

 

[Vocalek]

I understand those things may happen, however I don't think the ADA is generally read that way. Such impairment also occurs when (censor bypass) needle addicts are forced to abstain from the needle. However there will not be a ruling that an employer must accomodate the needle addict by allowing people to inject in the workplace or during work hours. Likewise alcohol for alcoholics that have a high tolerance and may otherwise suffer a DT - they don't get to swig from a bottle at their desk to "relieve their impairment".

This is the dilemma. If it's against the ADA to not hire an active nicotine (or alcohol or needle) addict where the NOT using is the impairment to be mitigated, then all the other facets of the ADA come into play as well and the mitigation (the using of the substance) then has to be "reasonably accomodated" in the workplace. That won't happen.

I'm totally a lay person and know I might be completely wrong about everything.

EDIT TO ADD: The other tactic is to say the employers who won't hire nicotine users are "regarding them" as having a disability and therefore are indeed discriminating under that portion of the ADA, but then reasonable accomodation isn't required. But of course that defeats the purpose... if accomodation isn't required then you'd have to follow the nicotine-free policy of the workplace. So it's rather self defeating for nicotine addicts who have those symptoms of impairment. Keeping the job would require showing that the symptoms didn't meet the criteria of a true impairment after all.

I see a big difference between nicotine dependence and addiction to an intoxicating substance. Have you every heard of someone being arrested for operating a vehicle while under the influence of nicotine? You haven't and never will, because nicotine does not impair thinking, judgment, motor skills, or reaction time, or trigger depression or anxiety. There's a good reason for not allowing an alcoholic to swig from a bottle at work. That employee can impair his/her ability to perform the job and even endanger the lives of others.

In contrast, preventing someone who has underlying attention deficit disorder from self-medicating with nicotine forces him or her to work while impaired, or to use the FDA-approved drugs that are much more dangerous to health than nicotine and that also shows up on drug tests, flagging you as a "speed freak."

The medical world has tried to put nicotine into the same bucket as addictive drugs that intoxicate. It doesn't fit.

 

[JerryRM]

In all fairness, if nicotine is put in the drug category and users are discriminated against, then so should caffeine and caffeine users.

 

[xg4bx]

am i the only one who sees the irony in the discrimination and marginalization of people at a place called "indian trail."

 

[Kevin Freeheart]

I support it.

I believe business owners should be able to set their own policy on who they want to hire and what contractual obligations they wish to demand from their employees.

I also think employees should be free to negotiate their own employment terms as well.

And people certainly should boycott businesses that enact discriminatory and overreaching policies like this.

 

[JustJulie]

I support it.

I believe business owners should be able to set their own policy on who they want to hire and what contractual obligations they wish to demand from their employees.

I also think employees should be free to negotiate their own employment terms as well.

And people certainly should boycott businesses that enact discriminatory and overreaching policies like this.

I agree with the general sentiment that business owners ought to be able to set their own rules (within reason, of course) for hiring. But what we're talking about here is a governmental agency. Do you really think a governmental agency ought to be in the business of enacting discriminatory and overreaching policies?

 

[Kevin Freeheart]

I'm an anarchist. I don't believe government should BE.