One of North Texas’ largest employers announced that it will not longer hire or consider for hire any individual who uses any nicotine product (i.e., cigarettes, nicotine gum or patches, chewing tobacco or electronic cigarettes). Baylor Health Care Systems announced its new policy on the careers page of its website stating:
As a health care system committed to improving the health of those we serve, we are asking our employees to model the same behaviors we promote to our patients. Beginning January 1, 2012, Baylor will no longer hire individuals who use nicotine products. Applicants who profess to use nicotine will not have their applications processed. Anyone who is offered and accepts a position with BHCS will be tested for nicotine during our regular post-offer pre-employment testing. Applicants who test positive for nicotine will be eliminated from consideration and pending job offers will be rescinded. We encourage candidates who do not pass the nicotine testing to consider taking steps to stop the use of nicotine and reapply for consideration after a period of 90 days.
The policy appears to screen out any applicants, regardless of the type of product used containing nicotine and whether the product is use on non-working time off the employer’s premises. Smoking or nicotine dependence has not historically had success in the courts as being a recognized ADA disaiblity. However, it will be interesting to see if in a post-ADAAA world, where the definition of disability has been greatly relaxed, this policy comes under scrutiny by the EEOC or applicants rejected for employment based on their use of products containing nicotine.
Baylor is not the first hospital to implement such a policy. However, similar policies are not without their critics. The National Workrights Institute, a nonprofit human rights organization focused on workplace issues, has been quoted that "such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding."
Presumably Baylor had its policy fully vetted by its legal experts and believes it can defend the policy. However, a quick, admittedly nonexhaustive research search, failed to find any cases holding that nicotine addiction is not a disability under the ADAAA. Only time will tell whether these kinds of policies will be upheld by the courts.
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