BUSINESS/FINANCIAL DESK

Company's Smoking Ban Means Off-Hours, Too

By JEREMY W. PETERS (NYT) 1190 words
Published: February 8, 2005

Warning: Cigarette smoking may be hazardous to your job.

That is what employees at Weyco, an insurance benefits administrator in this small central Michigan town, found out.

Under a new policy that legal specialists say is the first of its kind, Weyco began testing its 200 employees for smoking in January. And the company put workers on alert: In the future, they will be subject to random testing. If they fail, they will be fired.

Rather than take the mandatory breathalyzer test, four employees left the company.

And while Weyco's strict no-smoking policy is drawing the ire of civil liberties groups, it is within the bounds of employment law in Michigan. The state is one of 20 that has no laws preventing employers from firing workers who smoke even when they are not at work.

''What's next?'' Kary L. Moss, executive director of the American Civil Liberties Union of Michigan, said, speculating on other behavior that could cost workers their jobs. ''Sitting in the sun? Getting pregnant?''

In fact, employers in 46 states have significant legal leeway to tell workers what they can and cannot do once they leave the office. As a result, companies have done more than tell workers not to smoke.

Until the mid-1990's, the airlines enforced policies that limited how much a flight attendant could weigh. In the 1980's, Electronic Data Systems, the computer software company founded by Ross Perot, had a policy barring facial hair, and fired an employee who said that he wore a beard for religious reasons. In 1989, a company in Indiana fired an employee for drinking after work, a violation of the company's no-alcohol policy. And just last September, a company in Alabama fired a woman who drove to work with a Kerry-Edwards bumper sticker.

But firings for behavior away from work have been isolated, and legal specialists say that no company has ever gone as far as Weyco.

''They're actually testing,'' said John F. Banzhaf, a professor of public interest law at George Washington University and the executive director of Action on Smoking and Health, an antismoking group. ''Most of the companies as far as I know simply passed the policy and rely on the fact that employees made the pledge.'' Employers have targeted smokers for years. Since the mid-1980's, Alaska Airlines has refused to hire smokers and tells job applicants that they will be tested for nicotine use. In 2004, Union Pacific decided to stop hiring smokers and now asks applicants to disclose whether or not they smoke. But these companies and others that prohibit their workers from smoking rely on their employees to honor the policy. As long employees have said they do not smoke, that has been proof enough.

Activists for workers rights argue that unless employees are engaging in off-duty behavior that interferes with their work, employers have no business stepping in. In 30 states and the District of Columbia, it is illegal for companies to impose smoking bans on their employees when they are off duty. And while 13 states prevent companies from banning alcohol use off the job, only California, Colorado, New York and North Dakota have broader worker privacy laws that prohibit employers from regulating most legal activities when their workers are off the job.

''Once you cross the line and allow employers to control any type of behavior that's not related to job performance, there's no limit to the harm that can and will be done,'' said Lewis Maltby, president of the National Workrights Institute, an employees' rights organization based in Princeton, N.J.

Howard Weyers, the soft-spoken, silver-haired president of Weyco, said he initially approached a smoking ban with a similar attitude. ''I'm with a client one day and he told me, 'We're going to stop hiring smokers.' And I said, 'You're kidding me,''' Mr. Weyers said in an interview from his office at Weyco's headquarters. ''I reacted just like everybody else did: 'You can't do that.' Oh, yes you can.''

Mr. Weyers, 70, is a former college football coach who exercises five times a week. He says the smoking policy is not so much an issue of workers rights as a health issue. ''I spent all my life working with young men, honing them mentally and physically to a high performance. And I think that's what we need to do in the workplace.''

As a medical benefits administrator, Mr. Weyers has also seen how health care costs have risen, in part because of the high cost of treating smoking-related illnesses. A 2002 study by the Centers for Disease Control found that annual productivity losses and health care costs were $3,391 a smoker. Mr. Weyers said he could not afford anything beyond the $750,000 to $800,000 he already spends on health care costs each year.

So a year ago, he told his employees they were all going to be charged a $50 smoking fee. The company would waive the fee for employees who passed a nicotine test or, if they failed, agreed to take a smoking cessation class. The company brought in a smoking counselor, and Mr. Weyers said that as a result, about 20 employees kicked the habit.

For those who did not quit smoking, Mr. Weyers told them they had until Jan. 1, 2005. After that, mandatory testing would begin, and anyone who failed would be fired.

''You work for me, this is what I expect. You don't like it? Go someplace else,'' Mr. Weyers explained in an interview.

After 14 years at Weyco, Anita Epolito decided she would go someplace else rather than be forced to give up smoking.

''You feel like you have no rights. You're all alone. It's the most helpless feeling you can imagine,'' Ms. Epolito, 48, said. She is now searching for a new job. ''I never, ever from day one conceded to go with his policy because I knew that it had nothing to do with smoking. It had to do with my privacy in my own home.''

For Christine Boyd, 37, a Weyco employee and smoker of 10 years, the threat of losing her job was enough to get her serious about quitting. ''I had to choose between whether I wanted to keep my job and whether I wanted to keep smoking. To me it was a no-brainer.'' On Jan. 27, Ms. Boyd celebrated a year of being cigarette-free.

Photos: Howard Weyers, president of Weyco, a insurance benefits company in Okemos, Mich., said his concerns about health and the rising cost of health care led him to devise a plan to keep his employees from smoking. (Photo by Andrew Sacks for The New York Times); Anita Epolito, left, with Cara Stiffler and Tina Prater at a coffee house in Lansing, Mich. Ms. Epolito refused to follow Weyco's smoking ban. (Photo by Bridget Barrett for The New York Times)

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