Tennessee Hospital Tells Smokers: You Can't Work Here

Jan. 22, 2010— -- One Tennessee hospital is sending a very clear message to its future employees: if you smoke, you are not wanted here.

Beginning Feb. 1, Memorial Hospital in Chattanooga, Tenn., will no longer hire new employees who use any type of tobacco products.

According to a statement on the hospital's Web site, anyone offered a job with the hospital will be required to test for nicotine use, in addition to the previously administered drug test.

The statement, which is located under the career section of the hospital's Web site, reads in part:

"Effective February 1, 2010, Memorial Health Care System will no longer hire individuals who use tobacco or nicotine products in any form. Memorial Health Care System and its affiliates recognize the major importance of associates' health and well being, and the responsibility of maintaining a healthy and safe environment for all associates, volunteers, patients and visitors. " (Click here for the full statement:)

ABCNews.com made multiple interview requests with the hospital, but they were not fulfilled.

The off-hours ban the hospital is imposing on employees is not unique -- and a dismissal -- if the rule is ignored by an employee -- would not be, either.

Some companies have even stricter smoking rules.

In 2005, Weyco Inc. a Michigan-based administrator of corporate benefit plans, banned all employees, current and future, from smoking anywhere, anytime -- even at home. Four employees who failed random nicotine tests were fired, including Anita Epolito who told "60 Minutes," "I am not the poster child for nicotine here. This is about privacy. This is about what you do on your own time, that is legal, that does not conflict with your job performance."

Wayne Jeffrey was a police officer for seven years in Fall River, Mass., before he was dismissed in 2003 for smoking while off-duty.

A 1988 Massachusetts law forbade smoking by public safety officers, part of a deal to ensure people filing for disability could only cite work-related health issues. While police officers did sign a statement saying they would not smoke -- even when not on duty -- Jeffrey said many others on the force also signed it and continued to smoke.

Also, he said, officers hired before that time were grandfathered into the system, so he could smoke with another officer who could later turn him in -- which Jeffrey says is ultimately what happened to him.

For those reasons, Jeffrey said, the law seemed to be more about being able to fire people when necessary rather than for health concerns.

"It's a great tool when it becomes time to remove somebody," he said. "Had I been doing drugs, I would have been sent to a [counselor for treatment]," he added, noting that the law does not allow for a second chance when smoking is involved as it does in many states for drug addiction.

While he lost in arbitration and did not decide to pursue a court case, Jeffrey landed on his feet. He was offered a job through the sheet metal workers' union, where he belonged before becoming a police officer.

But Jeffrey still believes smoking laws for off-duty workers are unfair.

"Don't you think you should get the option to quit?" he said "Wouldn't that be more fair than hiring someone who doesn't smoke but might have a shady past. You can have an outstanding citizen who has a vice of smoking. It doesn't make sense."

But in his case, that doesn't mean he wants the habit himself, although he still smokes.

"Of course I realize smoking's bad for you…and I still try to quit. It's incredible to try to quit."

Insurance Companies

Though Memorial Hospital would not comment on the new policy, this comes at a time when many businesses are paying higher insurance premiums for employees who smoke. And some companies have attributed their policies against smokers to the cost of health insurance for smokers.

A spokesperson for Blue Cross Blue Shield of Tennessee told ABC News they have noticed a greater interest in keeping employee groups healthy.

"We are aware of increased efforts by employers to address the health status of their employees along with the affordability of that care. These efforts range from offerings like health coaching and gym memberships to on-site educational campaigns and incentive programs," said media relations manager Mary Thompson.

Thompson added that they do not have data to track the specifics of tobacco policies of group accounts.

But some pressure is coming in the other direction, to preserve the right of people to smoke when it comes outside the workplace.

Eugene Volokh, a professor of constitutional law at UCLA, said that while most states do not have them, some -- including North Carolina -- have passed laws preventing employers from regulating employees' out-of-office activities if they do not affect work.

While these laws are perceived as protecting people who smoke, they also allow people who participate in dangerous sports to continue pursuing those activities.

While federal laws exist to prevent discrimination, "It is actually limited to very few categories of discrimination," Volokh said, including race, religion, disability and nationality.

"By and large, most hospitals don't care if you ski off duty,"Volokh said. "They probably don't even care if you drink off duty."

Increase in Bans

While policies against hiring smokers are rare, company policies banning smoking on the work site are not.

Matthew Farrelly, director of the Public Health Policy research program at RTI, says he has seen a steady increase in smoking bans over the years.

"I documented in 1985 about 25 percent of workplaces banned smoking indoors. As of 2009, that was up to about 80 percent. That's a combination of state and local laws and as well as businesses just making the decision on their own," Farrelly said.

While California and New York led the states in enforcing bans, Farrelly says that there are now about 21 states that ban smoking in bars, restaurants and all work places.

Farrelly says his research has shown that going smoke-free has not seemed to hurt the business of companies, even for restaurants and bars.

"In New York state, when bars and restaurants went smoke-free, there was no widespread impact. We looked at sales and you couldn't tell the difference," he said.

But advocates for smokers' freedoms believe laws have taken a step too far.

"I think everybody started to eventually concede that even if there wasn't an issue, they were fine with separating smokers from non-smokers as a matter of courtesy," said George Koodray, assistant director of the Citizens Freedom Alliance, Inc. But, he said, that became a slippery slope. "No longer is the issue about the fact that you're smoking and you may be involuntarily imposing smoke upon me.

"I think that's unfair, I think that's an infringement on the freedom of others," he said.