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Roberts on new hiring policy

Jessica RobertsThe State of Texas recently passed legislation requiring that state employees stop smoking or face higher premiums for their health insurance coverage. And some companies are refusing to hire smokers altogether. An expert in health law and anti-discrimination, University of Houston Law Center Professor Jessica Roberts discusses the new trend in a radio segment for KUHF Houston Public Radio.

Click here to listen to the piece and to read the corresponding article.

In addition, Roberts takes a few moments to address some interesting legal questions raised by the controversial practice.

Why have so many states enacted legislation prohibiting such employer actions?

When employers started banning employee use of tobacco around five or six years ago, approximately two-thirds of the states reacted by passing legislation either that explicitly protects tobacco users or that prevents employers from discriminating against employees on the basis of lawful conduct.  States felt that employers were going too far by regulating employee conduct off the job.  These initiatives are sometimes known as “lifestyle discrimination” statutes.

Could a nicotine addiction be classified as a disability?

The ADA defines “disability” in three ways: “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such impairment; (C) being regarded as having such an impairment.”  The first issue, therefore, is whether nicotine addiction constitutes an “impairment.”  Courts have recognized alcohol addiction as an impairment, so it is possible they could do the same with nicotine.  That said, the litigant would still have to establish that the nicotine addiction itself—not the health conditions associated with smoking—“substantially limits” her, which could be difficult to do.

Can you elaborate on how the ban may violate the Americans with Disabilities Act?

Instead of nicotine addiction constituting a disability under the first prong of the ADA, it is far more likely that a litigant could argue her employer regards her as disabled under the third prong.  To be regarded as disabled, the litigant has to establish that the employer discriminated against her on the basis of an actual or perceived impairment, regardless of whether the employer believed that impairment was substantially limiting.  Employers are screening their employees for nicotine use pursuant to these bans.  Thus, employees and job applicants who use nicotine could argue that they are effectively being “regarded as” disabled.

Do you believe Texas will enact legislation to outlaw the practice in the future?

It’s hard to say.  By not having legislation, Texas is currently in the minority of states.  However, some advocates of employee rights have urged the Texas Legislature to consider banning lifestyle discrimination.  Baylor only recently adopted the policy discussed in the interview.  If more big Texas employers follow suit, we’ll have to wait and see if the Legislature decides to take on this issue.

To schedule an interview with Jessica L. Roberts, please contact: Carrie Criado, Executive Director of Communications and Marketing, cacriado@Central.UH.EDU, 713.743.2184; or John Kling, Communications Manager, , 713.743.8298.