A Local Government Strategy to Reduce Smoking: Refuse to Hire Smokers

In June, Beverly Hills became the first city in the U.S. to ban the sale of almost all tobacco products. “Somebody has to be first, so let it be us,” Mayor John Mirisch said. The law marks a distinct milestone in the evolution of efforts to curb smoking over the past few decades, but it also illustrates a larger trend: the willingness of local governments to go further than states or the federal government in their efforts to reduce smoking.

Some local governments have taken those restrictions to their own operations, instituting policies prohibiting the hiring of smokers into government jobs.

The practice, while gaining traction mainly with city and county governments, actually began with a state in 1988, when Massachusetts implemented a ban on smoking for all firefighters and police officers. The rationale was relatively simple—those jobs require heightened levels of physical fitness and smoking prevented people from reaching their potential.

But in recent years local governments in some states expanded the reach of these bans to encompass more employees and prohibit new hires from not only smoking, but also vaping or using nicotine replacement products like gum. In enacting the bans, officials usually say they want to promote public health while reducing the cost of health insurance. 

In Florida, where the state Supreme Court has upheld the right of employers to deny work to smokers, at least eight cities and counties have instituted bans, the most recent of which went into effect in 2013. There could be more, but in at least one case—the city of Sarasota—pushback from unions prevented the implementation of an anti-smoking proposal.  

Flagler County, Florida, justified their ban on the basis of cost and cited a study that found employers may pay almost $6,000 more each year for every employee who smokes. With the policy, new employees have to pass a nicotine test and sign an affidavit certifying that they have not used nicotine for the past year and will not use it going forward. Joseph Mullins, a commissioner for the county, said that the ban has had a positive impact over the past six years it has been in place. “It’s improved health conditions, reduced the risk of secondary lung cancer, and we’ve had a positive response from the government staff,” he said. 

But Mullins acknowledged that it’s hard to say whether the smoker ban has specifically contributed to reduced health care costs for the county. “Reduced health care costs are likely a combination of a good economy and healthier living conditions, in addition to the ban,” he said.

Local governments in some states have had more trouble enacting bans. Fairfax, Virginia tried to explore ways to force their county workers to quit smoking, but was preempted by a state law that banned the practice. Virginia is one of 29 states (and the District of Columbia) that has passed laws prohibiting employers from discriminating against smokers in the workplace.

In the 21 states without protections for smokers, it isn’t just government that places restrictions—private employers do as well. In Ohio, the Cleveland Clinic, the largest employer in the state, was one of the first companies nationwide to institute a ban. Many other prominent companies have followed suit, including Union-Pacific Railroad and Alaska Airlines.

While there is nothing illegal about these bans in states that allow them, some say that they’re unethical. Harald Schmidt, a professor of medical ethics at the University of Pennsylvania said that it’s a fallacy to see smoking as something completely under someone’s control, and therefore easily stopped. “Part of the justification behind not hiring smokers is the idea that they could just not engage in risky behavior,” he said. “But it’s not that simple—it’s a medically recognized addiction. It’s no longer a matter of willpower when chemical processes undermine your decision making.”

In the murky territory of addiction, where choices and obligations overlap, Schmidt said it’s also important to recognize that many people start smoking when they’re minors and don’t yet have the full capacity to make smart choices. That makes smoking a very different type of risky behavior, Schmidt argued, than other things that employers might take issue with. A major justification of smoker-free workplace policies is their increased health care costs, for example, but Schmidt noted employers don’t penalize those who ride motorcycles without helmets, even though they might have disproportionately high health care costs. 

Last month, Dayton, Ohio became the latest municipality to implement a non-smoker hiring policy (which includes those who use non-cigarette nicotine products like Juul vapes), and did so on the premise of health care costs. The policy faces opposition from some employee unions, including the police, but they’ve also been understanding of the health care argument. "We understand why they're doing this, to curb the detrimental cost smoking has on health care, and we understand their mentality,” said Jerome Dix, the acting president of the Dayton Fraternal Order of Police, in an interview with CNN. “But it's going to really hurt our recruiting efforts.”

Smoking bans may also have compounding effects beyond recruitment lulls. If companies or local governments that are a significant source of employment in an area stop hiring smokers, there could be economic consequences for those workers. And as one researcher pointed out, those consequences might actually lead to worse public health outcomes because “unemployment is also bad for health.”

Since smoking rates are particularly high among low income people and those with low educational attainment, it’s also possible that policies designed to promote equity by not forcing non-smoking employees to assume part of the health care costs of their smoking peers, would actually perpetuate inequity by negatively affecting those without the resources to find employment elsewhere.

Efforts to challenge smoking bans in court have been unsuccessful in states that allow employers to adopt the policy. Lawsuits were filed against both Oklahoma City (which bars firefighters from smoking) and North Miami (which asks applicants to sign an affidavit certifying they have not smoked for at least one year prior to interviewing). But even on appeal, judges have found that while employees enjoy a right to privacy in their free time, they do not have a constitutional right to smoke. 

But, at least for now, studies on the impact of smoker-free workplaces are sparse, an issue that Schmidt said limits the ability to prove if they are actually effective in promoting public health and increasing smoking cessation. “Essentially, these policies are just tests of a hypothesis, and if you implement such a measure with the goal to get people to stop smoking, you should at least evaluate if it’s equitable and effective,” Schmidt said. “It’s disappointing that there’s a blind trust in the effectiveness of smoker bans.”

Instead, Schmidt suggested governments interested in promoting public health provide smokers with incentives to try out evidence-based cessation programs. While there isn’t a lot of data on smoker bans, employers who introduce more accessible tobacco cessation treatment options have been shown to significantly reduce the number of people who smoked.

“Public health as a shared mission, so public employers especially should offer assistance to people who want to quit,” he said.