The Trouble with Tobacco Testing


There may be some legal issues around organizations testing their employees for tobacco use, but whether the benefits outweigh the costs largely depends on a company's culture.


Tuesday, October 9, 2012
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Over the past few decades, the culture of tobacco use in the workplace has changed from tacit acceptance to clear rejection, now that organizations understand that nicotine-addicted employees may not be the most cost-effective ones.


But in a recent webinar presented by attorney Julie B. Ross of the Fort Worth, Texas-based labor and employment-law firm of Lynn Ross Smith & Gannaway, she addresses the issue of whether companies should actually test their employees for tobacco use.


"The issue of nicotine testing is complicated not only by the presence of smokers' rights laws and lifestyle statutes in certain states," she says, "which prohibit employer interference in off-duty conduct, but also by questions regarding disability and privacy."


While there are few reported cases on smoking or nicotine addiction under the ADA, Ross says, no court has yet found that nicotine addiction is a disability. However, the ADA Amendments Act makes it much easier for individuals to seek protection under the ADA by greatly expanding the definition of disability. In addition, nicotine addiction can result in cancer, lung disease and heart disease, which are all classified as disabilities under the ADA.


Another unanswered question under the ADA is whether a nicotine test can be considered a medical exam.


"Under ADA guidelines," Ross says, "the touchstone is whether a nicotine test seeks information about an individual's health or physical impairment. In testing for nicotine, employers will argue that they are not concerned with any health issues or problems, only whether nicotine is present in the employee's system.


"Any adverse employment action would then be based solely on the individual's status as a tobacco user, not on any resulting physical impairment or disability," she says. "This argument will carry more weight if nicotine addiction is found not to be a disability under the ADAAA."


Other factors used to determine if a procedure or test is a medical exam under the ADA, she says, include how invasive the test is, who gives the test and who interprets the results. Less invasive tests, such as self-contained, saliva-based cotinine tests -- which detects the specific marker for determining exposure to tobacco and nicotine -- can be administered and interpreted by a non-healthcare professional, making them less likely to be viewed as a medical exam, says Ross.


Alere Wellbeing's tobacco-cessation program includes a non-invasive, saliva-based nicotine test, which is attracting attention from HR leaders who choose to implement a premium differential or tobacco surcharge. Yuki Yang, vice president of client services, says that, under new regulations associated with the Healthcare Reform Act, this method of encouraging employees to quit smoking may account for as much as 20 percent of the total health insurance premium increase in 2014.


 "Over the past two years, interest from our employer and health plan clients in nicotine testing has been on the rise," says Yang, noting that nearly 600 HR professionals signed up for the webinar. "From my experience, the interest is being driven by senior management looking at additional ways to ensure that premium differentials and incentives are being reserved for those who can be verified as non-tobacco users and to use the promise of randomized testing as a way to encourage higher participation and engagement in existing tobacco-cessation programs."


A partner in the San Francisco office of Fisher & Phillips, Callan G. Carter works exclusively in the firm's employee benefits practice group. She says that employee communication and test administration present a double-edged challenge to employers. "Every time employees or plan participants are tested for nicotine, somebody has to administer those tests and get results and do the follow-up work. Plus, the tests can be expensive," she says. "There is also the issue of what to do about other household members that might smoke. I find that most employers allow employees to self-certify their tobacco use status and only test an employee for nicotine if the employer has a reason to believe the employee may be using tobacco after they have certified otherwise."


Carter addresses the issue of e-cigarettes as a nicotine delivery system, regardless of the fact that they emit water vapor instead of smoke. "An employee [who smokes e-cigarettes] would test positive for nicotine and would still be considered a tobacco user at that point; like someone who chews tobacco," she says, adding that she hasn't heard much discussion about e-cigarettes from her clients.  "I don't think they are popular enough yet with the general population to be very prevalent."


Based in the Charleston, South Carolina office of employment- and labor-law firm Moore & Van Allen, Brandon Gaskins says that his is the only state which prohibits companies from mandatory nicotine testing.  "Premium differentials have become a trend that more employers are using to incentivize people to change their habits and promote a healthier lifestyle," he says, "as well as get employees who have disproportionally higher health costs to pay their fair share."

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He adds that wellness incentive programs which rely on self-reporting and the honor system are quite successful. "The studies I've seen show most employees are fairly honest and accurately disclose, so the additional costs associated with testing would not be worth the marginal increases in effectiveness at detecting smokers."


Another issue with testing is that it can cross the boundaries of trust and privacy. According to Polly Thomas, on-site clinic consulting director of CBIZ; a benefits and health insurance consulting firm based in Cleveland, "Many employers elect a self-reported option, because it is not an additional cost to the employer and is viewed as less intrusive to the employees. Some employers feel that it also fosters a greater culture of trust to take the employee's word on their smoking status. Other employers take a middle-of-the-road approach and require employees to complete a signed affidavit that indicates they do not smoke."


However, she notes that CBIZ is working with an increasing number of employers who test employees for smoking as part of their annual open enrollment process. "These employers are often tying a premium incentive to employees who are non-smokers as part of their wellness program and want to ensure they are accurately applying the incentive across the company. Employee reaction to this type of program depends upon how the program is communicated and if programs and benefits are available to help employees who wish to stop smoking. When those elements are in place, these programs are better received by employees. Several of the companies we work with have wellness committees that discuss issues such as this and determine which approach will best fit with the culture of the workplace."


LuAnn Heinen, a vice president and wellness expert at the National Business Group on Health in Washington, quotes a recent survey put out by NBGH to its entire membership, which revealed that more companies are basing incentives or penalties on tobacco use, and the great majority use the honor system. "In our sample, only 16 percent of those who answered our survey use cotinine testing," she says.


"I think it has more to do with the company culture and what's right for that environment," Heinen says, acknowledging that wellness programs are all about making employees' lives better. "The whole reason we have wellness programs is to help people be healthier, perform better at work, reduce absenteeism and maintain positive relationships; we don't want to create a big brother or police state environment. Don't lose sight of the main mission. The most important thing is the employer/employee relationship, and it's not worth it to put that in jeopardy."



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