Nicotine Fit: Can Employers Discriminate Against Users?

Photo Credit: Prime Health Channel

While much of the media focuses this week on Illinois’ new recreational marijuana law, U-Haul has announced a company-wide ban on employing nicotine users in states where there is an employer right to make hiring decisions based on tobacco and nicotine use.

Those 21 states are Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Massachusetts, Michigan, Nebraska, Pennsylvania, Texas, Utah, Vermont, Virginia and Washington.

The policy will not apply to current employees who may smoke or use nicotine in some other manner. And the new rule won’t apply to job applicants in most states.

The company says that it implementing the policy to foster a culture wellness at U-Haul.

On Friday, January 3^rd at 8:20 Central Time, I’ll discuss this policy in a live interview on KCBS.

If time permits, I’ll briefly discuss a lead case in this area involved the Lawrence Livermore Lab in the Bay area.

The lab used medical tests to screen for syphilis, Sickle cell, pregnancy, and other personal medical information. The Ninth Circuit Court of Appeals ruled against the lab, and in doing so it found a broad employee privacy right to shield individuals from employer screening.

That said, I am not aware of a blanket nicotine-use right for employees.

Here is my point: If U-Haul could prove a “compelling interest” to test for nicotine, it’s conceivable they could implement the policy in California. I don’t know if the medical evidence on nicotine use gives employers a “compelling interest” (it’s such a high legal threshold). 
If employers could only prove a “substantial interest,” they would lose (that's my hunch on this issue). 

For now, U-Haul is choosing to play it safe with states that don’t restrict employee medical tests— they won’t test for nicotine use in California.