I

A Proposal for On and Off work Smoking Ban for Federal Government Employees

Bradley R. Sidle

J.D. Candidate May 2005

Washington and Lee University School of Law

Abstract:

Limitations on smoking in the workplace have become commonplace. Both private and public employers have either eradicated smoking from the workplace altogether or placed substantial limitations on the areas in which smoking can take place. The federal government has restricted smoking in transportation systems and many government buildings. These policies, although not free from controversy, have started to gain acceptance as the standard, not the exception, for workplaces across America.

However, the movement to curb smoking has not stopped at regulation in the workplace. Employers have also taken a different approach to the problem of smoking: a total ban on smoking by their employees – on and off the job. These so-called “off work” smoking bans are clear departures from previous “at-work” smoking polices. Employees are not only judged by their conduct while at work, but also their conduct in their private lives behind closed doors.

The State of Massachusetts, under Governor Michael Dukakis, passed radical legislation that prevented certain public agencies from hiring smokers and dictated the termination of employees who later began to smoke. In addition, many municipalities and thousands of private corporations have adopted similar policies. Thus, it would seem natural for the federal government to follow suit and adopt an on and off work smoking ban for federal employees.

However, a federally mandated on and off work smoking ban faces many challenges. First and foremost, such a policy would be subject to a challenge under the United States Constitution – specifically, the right to privacy. Although the right to privacy is not explicitly found in the Constitution, it has been widely recognized that various provisions of the Constitution guarantee some form of privacy. The question of whether the private practice of smoking while off work falls under the protection of the right to privacy has yet to be addressed by the Supreme Court of the United States.

However, it is unlikely that a challenge to an on and off work smoking ban, based on the grounds that it infringed on an individual’s right to privacy, would be successful. It is doubtful that smoking would be considered a fundamental right like decisions regarding marriage, procreation, contraception, family relationships, child rearing, and education. Therefore, an on and off work ban on smoking for federal government employees would only have to satisfy a rational basis test to pass Constitutional scrutiny. The utility of smoking is next to nothing and therefore, it is easy for competing interests to outweigh the right to smoke. Moreover, the costs of smoking cannot be understated. Given this backdrop, it is easy to articulate a rational basis for an on and off work smoking ban.

Even if the right to smoke were deemed a fundamental right, it would still be possible for an on and off work smoking ban to satisfy the strict scrutiny requirement dictated by the infringement on a fundamental right. Although recent Supreme Court decisions have expanded the right to privacy, it is still doubtful that the smoking status of a federal government employee or prospective employee would fall under the penumbra of the right to privacy. A review of the major cases that have addressed on and off work smoking bans affirms this position.

Additional arguments against a on and off work smoking ban have little merit. First, critics argue that such a ban would lead to a slippery slope of employment regulation – leading employers to take into consideration a number of off work behaviors. This argument is flawed because smoking is not like other off work activities. The harms of smoking are far greater than those presented by other off work activities and smoking is often not an entirely off work behavior. Other critics argue that an on and off work smoking ban would be unpopular. While this may be true, sound policies are often unpopular. The popularity of a policy does not implicate its effectiveness.

There have been two major cases that have addressed the issue: Grusendorf v. City of Oklahoma City and City of North Miami v. Kurtz. The Court of Appeals for the Tenth Circuit issued the only notable federal case on the topic in Grusendorf. The plaintiff in Grusendorf had been hired by Oklahoma City as a firefighter trainee. He was required to sign an agreement not to smoke during his first year of employment, both on and off work. After two months of work, during an unpaid lunch break, he was observed smoking and subsequently discharged.

In an action for declaratory, injunctive, and monetary relief, the plaintiff alleged that the defendant had violated his rights to privacy and due process under the Fourteenth Amendment. The district court granted the defendant’s motion for summary judgment and the Tenth Circuit affirmed. The Tenth Circuit found no right to privacy implicated by the on and off work smoking ban.

Similarly, the Florida Supreme Court upheld a City of North Miami regulation that required applicants to sign an affidavit swearing that they had not smoked tobacco products in the year preceding application for employment. The plaintiff applied for a clerical position with the city and refused to sign the affidavit. She was then informed that she would not be eligible for the position because of her failure to sign the affidavit.

Although the Florida Constitution grants an explicit right to privacy, the Florida Supreme Court held that the plaintiff’s privacy rights were not implicated under the Florida Constitution. The court went on to address the issue of whether the statute implicated the plaintiff’s privacy rights under the United States Constitution. Again, the court found that the plaintiff’s privacy rights under the United States Constitution were not implicated by the on and off work smoking ban.

An on and off work smoking ban would be a bold statement from the federal government that smoking is not a lifestyle choice which it will condone. Providing a clear, consistent message against smoking is an important step in combating the overall problem of big tobacco and the promotion of smoking in general. Moreover, the benefits of an on and off work smoking ban for federal government employees are particularly appealing. First, such a policy would be justified as a protection of the public fisc. There are numerous studies that show the costs of employing smokers over non smokers: decreased productivity, increased insurance costs, more absenteeism, increased number of accidents, etc. Therefore, an on and off work smoking ban for federal government employees would create a healthier, more effective workforce. This in turn decreases costs to the taxpayers, who end up bearing the costs of employing smokers.

Second, the government would be setting an example for private industry to follow. Private industry currently may not realize the costs of employing smokers. As a result, employers may make the myopic decision to hire a smoker without realizing the long-term cost associated with a smoking workforce. Having the federal government spearhead the effort would pave the way for vast acceptance and recognition amongst private industry of the ills of employing smokers.

Finally, an on and off work smoking ban for federal government employees would clearly signal that the costs of hedonistic lifestyle choices with little utility should not be borne by the people of the United States. Smoking is a lifestyle choice – a choice that has been shown to cost tens of billions of dollars a year in healthcare costs and productivity. It is time that the federal government follow what private industry has already started to do: ban smoking both on and off work for its employees. The result will be a healthier and more productive workforce.

I. Introduction:

Limitations on smoking in the workplace have become commonplace. Both private and public employers have either eradicated smoking from the workplace altogether or placed substantial limitations on the areas in which smoking can take place. A number of private employers will refuse to hire smokers.[1] It is commonly accepted that many private employers have smoking policies of some sort. Anymore, it almost goes without saying that cigarettes must be extinguished upon entering an office building.

The federal government has followed along in the regulation of smokers in the workplace. The federal government has restricted smoking in transportation systems and many government buildings. In fact, the General Services Administration, which affects thousands of federal buildings and millions of federal employees, has implemented a smoking policy recognizing the health hazards of passive smoke on the non smoker.[2] Additionally, the Army has also implemented a broad smoking policy.[3] These policies, although not free from controversy, have started to gain acceptance as the standard, not the exception, for workplaces across America.

Now, a new breed of smoking regulation has started to emerge: the regulation of off work smoking by employers. This paper looks at the advantages and possible challenges of an on and off work smoking ban at a federal government level. While such a proposal would clearly be a bold step by the federal government, this paper serves to demonstrate that such a policy would not be indefensible. On the contrary, the current legal landscape suggests that an on and off work smoking ban for employees would be completely legally sound and the notable cases on the topic have found challenges to such policies unsuccessful.

Part II of this paper addresses smoking in the United States. First a brief history of smoking in the United States is presented to provide a backdrop for the current landscape of smoking regulation. Next, the harms of smoking are explained. Part III of this paper looks at the regulation of smoking in the workplace. A Massachusetts on and off work smoking ban is specifically addressed in Part III. Part IV addresses the two leading cases on the issue. Part V looks into the privacy implications of an on and off work smoking ban and the challenges that may arise in regards to the right to privacy. Part VI addresses why the so-called “slippery slope” argument is flawed as well as why the popularity of an on and off work smoking ban should not be a concern. Part VII of this paper is the conclusion, in which a model statute for a federal on and off work smoking policy is proposed.

II. Smoking in the United States:

A. A Brief History of Smoking in the United States

Tobacco plays a vital and extensive role in the history of the United States. When Columbus left for the Americas, Europe was generally unfamiliar with tobacco.[4] Native Americans grew and used tobacco and Columbus was introduced to their practices.[5] After Columbus returned from his voyage to the Americas with tobacco seeds, tobacco soon became a popular commodity in Europe.[6] The popularity of tobacco in Europe was so great that the export of tobacco was an extremely important aspect of colonial American economies.[7]

The ill effects of tobacco have been known for a long time. The regulation of smoking has a long history: in fifteenth century Turkey, smoking was a capital offense.[8] However, the anti-smoking regulations in the United States started in the late 1800’s and early 1900’s. These initial restrictions ranged from the prohibition of cigarette sales to minors to the flat out ban of cigarette sales by seventeen states in 1909.[9]

World War I was an important catalyst to the fall of the early American anti-smoking efforts. [10] By 1915 much of the broad anti-smoking legislation was repealed and the assent of tobacco – and more specifically, cigarette – popularity began.[11] Smoking popularity received a large boost from World War II as well as the Hollywood glamorization of smoking. By the mid-1950’s, the popularity of smoking had reached its peak – nearly 70 percent of adult men in the United States smoked cigarettes.[12] The popularity of smoking began to ebb as a number of studies came out showing the deleterious effects of smoking. In 1964 the Surgeon General of the United States reported a causal connection between cigarette smoking and lung cancer.[13]

Lead by advocacy groups such as A.S.H. (Action on Smoking and Health), what followed was a series of legislation and litigation that served to make the United States less smoker friendly. States and localities across the nation implemented restrictions on smoking in public places. The fight to ban smoking on airlines was waged during the 80’s and the 90’s with smoker’s rights giving way to clean air.[14] The now familiar segregation of smoking and non smoking sections in restaurants, smoking and non smoking rooms in hotels, and smoking and non smoking sections in airports has become the standard not the exception.

Another aspect to the fight against smoking emerged in the mid eighties: the fight against secondhand smoke, or environmental tobacco smoke (ETS). In 1986, the Surgeon General of the United States issued a report that explicated the ills of ETS.[15] The report was recognition of the intuitive: non smokers were inhaling the same, if not more harmful, chemicals as smokers – just in smaller doses. In 1992 the EPA (Environmental Protection Agency) bolstered the fight against secondhand smoke by designating ETS as a “group A” carcinogen – a known human lung carcinogen.[16] In layman terms: ETS can cause cancer.

Big tobacco sustained another blow in the mid-90’s when documents were leaked from a major tobacco company that suggested the tobacco industry understood and manipulated the addictive nature of tobacco.[17] This brought rise to a relatively successful wave of tobacco litigation which culminated in the testimony before the House Commerce Committee by chief executive officers from major big tobacco companies acknowledging some of the harmful effects of tobacco. The tobacco industry agreed to pay over $200 billion in a historic settlement of lawsuits brought by forty-six states.[18]

More recently, an attempt to make tobacco companies “un-cool” has surfaced. Big tobacco has been vilified through movies such as “The Insider” and ad campaigns such as “the Truth.” Counter culture movements such as the “straight edge” lifestyle have formed in response to the hedonistic popularity of sex, drugs and rock n’ roll. This straight edge counter culture allows youth and adults alike to find identity in the rejection of smoking, drugs, alcohol and other hedonistic pursuits. The days of the cool smoking rebel are losing ground to a generation aware of the evils of smoking.

Despite what seems to be a growing negative sentiment toward smoking, the tobacco industry remains an extremely profitable industry. Tobacco alone accounts for 1 percent of the United States gross national product.[19] Phillip Morris Company, Inc.’s net income for the year 2000 was $8.4 billion.[20] Perhaps as a result of the foothold in the United States economy, big tobacco does not appear to be going away anytime soon. The myth that big tobacco is struggling from the tobacco litigation is far from true.

B. The Harms of Smoking:

The health consequences of smoking are undeniable and staggering. The Center for Disease Control reported that between 1995 and 1999 smoking caused approximately 440,000 premature deaths annually.[21] To be sure, smoking is the leading cause of preventable death.[22] Smoking is responsible for more deaths than AIDS, crack cocaine, heroin, alcohol, homicides, suicides, and automobile and airplane accidents combined.[23] Cigarette packages themselves are required to display warnings that declare the dangerous nature of the product contained therein.

The health consequences of cigarette smoking are not simply restricted to smokers. As mentioned before, ETS has been classified by the EPA as a human carcinogen. In fact, ETS is more toxic than directly inhaled smoke. This is because inhalation on a cigarette causes the cigarette to burn at a higher temperature resulting in fewer dangerous chemicals.[24] Additionally, many cigarettes contain filters which the smoke is inhaled through by the smoker. On the other hand, side-stream smoke burns at a lower temperature and is not filtered. ETS consists of more than 4,000 chemicals and hazardous compounds.[25] In the EPA’s report classifying ETS as a group A carcinogen, they also reported that there are approximately 3,000 annual non smoker deaths resulting from ETS.[26] Some say the number of non smoker deaths resulting from ETS exposure is as high as 53,000 per year.[27]

The economic costs of smoking are equally staggering. The Center for Disease Control estimated that between 1995 and 1999 there was an average of $157 billon in annual health-related economic losses resulting from smoking.[28] This included an annual average of over $75 billion in smoking attributable medical expenditures and equally astonishing $82 billion in smoking attributable productivity costs.[29] The enormity of these collective numbers is hard to comprehend – it is easier to understand when broken down per smoker. The average annual smoking attributable economic cost per smoker is $3,391: $1,760 per smoker in productivity costs, $1,623 per smoker in medical expenditures, and $704 per smoker in smoking attributable neonatal medical expenditures.[30] The United States literally loses thousands of dollars per smoker in health related economic costs every single year.

While the medical expenses associated with smoking may not come as a surprise, the fact that the loss in productivity eclipses medical expenditures may be a bit more surprising. Some estimates actually place the cost of employing a smoker over a non smoker as high as $4,500 per worker per year.[31] The cost of employing smokers manifests in a number of ways: more absenteeism, extra insurance costs, fire losses, smoking breaks, increased injury rates because of loss of attention, coughing, and other distractions.[32] Some argue that a smoking habit consumes two and a half hours a week of a smoking employee’s time.[33] Additional expenses from employing smokers may come from liability that arises for failing to adequately protect non smokers. The bottom line is that employing a smoker is not a negligible expense – in fact, it is quite significant.

III. The Regulation of Smoking in and out of the Workplace:

A. General Regulations:

The regulation of smoking in the workplace is not a new concept. Smoking has long been regulated in industries and circumstances where smoking presents a danger of fire and explosion.[34] The Occupational Safety and Health Act also prohibits smoking under several standards regarding areas where there are combustible or explosive materials.[35]

In addition, many states and municipalities have enacted legislation regulating smoking in the workplace.[36] In fact, restrictions on smoking in the workplace are commonplace. The days of smoky offices and the presumption of being able to smoke wherever are long over. Now, many if not most, offices do not allow smoking at all. Other offices have enacted rules which mandate specific private offices for smoking or segregated areas where smoking is allowed.

Another aspect of smoking regulation and the workplace has begun to unfold. Now, employers are increasingly refusing to employ smokers altogether. This is significant because these regulations encompass activities and lifestyles that are outside of working hours. While these policies may seem invasive at first, as outlined above, the cost of employing a smoker is substantial. As a result, even as long as a decade ago, approximately 6,000 employers refused to hire smokers.[37]

In response to such moves, many states have enacted legislation that prevents employers from refusing to hire or retain smokers.[38] This legislation has varied from specific prohibitions of discriminating against smokers to the regulation of employers considering the use of “lawful products” or participating in “lawful activities” during non-work hours in employment decisions.[39] In a way, these statutes protect smokers as if they were a special needs group.

This begs the question of whether smokers deserve such protection. Some argue that smoking is an addiction over which the individual has no control. While, there is certainly an addictive component to smoking, personal autonomy is not entirely out of the picture. Individuals choose to start smoking. Individuals choose to not utilize resources to quit smoking. Individuals engage in the deliberate action of smoking itself. To say that the individual is entirely without fault ignores the reality of smoking.

It is also important to note the invasive nature of smoking. Smokers do not simply inflict damage upon themselves; instead, other people are significantly affected as well. As outlined above, ETS causes thousands of non smoker deaths every year. Additionally, the economic harms caused by smoking are borne by smokers and non smokers alike. The decision to smoke is not an isolated, individual decision; it is one that affects the individual and community alike.

B. The Massachusetts Statute:

Under Governor Michael Dukakis, the Massachusetts legislature passed into law a statute effectively prohibiting the employment of smokers as police officers and firefighters. The statute currently reads:

Subsequent to January first, nineteen hundred and eighty-eight, no person who smokes any tobacco product shall be eligible for appointment as a police officer or firefighter in a city or town and no person so appointed after said date shall continue in such office or position if such person thereafter smokes any tobacco products. The personnel administrator shall promulgate regulations for the implementation of this section.[40]

When implemented, one of the stated goals of the statute was to “decrease the mortality and morbidity rates among the general public from accidents and diseases for which risk factors can be identified.”[41] The Massachusetts statute is significant because it is the first such on and off work smoking ban implemented on a state-wide level.[42] While some municipalities had passed similar restrictions,[43] the Massachusetts statute represented a significant step in terms of scale.

Perhaps surprisingly, there has been relatively little litigation surrounding the Massachusetts statute. The first and perhaps only notable case to address the statute was Town of Plymouth v. Civil Service Commission.[44] The case centered around the termination of Lynne M Rossborough from her position as police officer with the town of Plymouth on July 30, 1993.[45] Ms. Rossborough was fired because she was observed smoking tobacco in violation of the above mentioned Massachusetts statute.[46] She appealed her termination to the Civil Service Commission who decided she should be restored to her position as a police officer as a result of her demonstration that she no longer used tobacco products.[47] Standing by its decision, the town of Plymouth appealed the Civil Service Commission decision to the Superior Court where the complaint was dismissed.[48]

The Supreme Judicial Court of Massachusetts vacated the Civil Service Commission decision and upheld the town’s decision to fire Ms. Rossborough.[49] The court reviewed the Commission’s finding that Ms. Rossborough had been terminated without just cause and found that the statute in question mandated the termination unlike similar statutes which provided for discretionary termination.[50] In upholding the decision to fire Ms. Rossborough, the court also noted one of the policy interests behind the statute: preventing police officers and firefighters from increasing their risk of hypertension and heart disease by smoking.[51]

While the legitimacy of the statute itself did not play a central role in the court’s decision, the court did address the constitutionality of the statute in footnote 4. The court stated that the Civil Service Commission had determined that §101A was constitutional “because there was a rational connection between the statute and the legitimate public purpose of promoting the health and safety of police officers and fire fighters who, by reason of their employment, are particularly susceptible to hypertension and heart disease.”[52] The court also cited cases which have upheld similar smoking bans but noted that the constitutionality of §101A was not at issue.[53]

The only other published case to address §101A is Howcroft v. City of Peabody.[54] In Howcroft the plaintiff, a police officer, was terminated after complaining about his superior’s smoking habits and subsequent harassment. Howcroft is largely a First Amendment case, but did brush on the constitutionality of §101A. the court stated that “[i]t is beyond dispute that secondhand tobacco smoke, and its effect on the health of the public, is a matter of deep and abiding public interest.[55] In footnote 19, the court again revisited the constitutionality of §101A. Citing Plymouth v. Civil Serv. Commn,.[56] the court reiterated the legitimacy of §101A, emphasizing the rational relationship between the policy objectives of the statute and the means of the statute.[57]

C. A Synthesis

A look at the general history of smoking regulation seems to show that smoking regulation is becoming increasingly restrictive. The once tolerant attitude toward smoking that was seen around the World War I and World War II had given way to an age of awareness of the hazards of smoking. Increasingly, non smokers’ rights are being asserted both on the legal front and in the fabric of society.

The workplace has been no exception to this trend. Increasingly, workplaces have decided to adopt smoking policies which place restrictions or flat out bans on smoking. The recognition of the costs of employing smokers has lead states, municipalities, government agencies and private companies to take a stand against smoking. Now the regulation of smokers by employers has taken on another face: the regulation of off work smoking as well.

Municipalities and states alike are already instituting bans on smoking that extend to both on and off work behavior. As discussed above, the Massachusetts statute that banned smoking by police officers and firefighters both on and off work has remained on the books and survived what few legal challenges that have been brought.

As previously noted, thousands of private companies have already instituted bans on hiring smokers – smokers who smoke at anytime, even during non-working hours. On first glance this may seem a little drastic and intrusive, but the bottom line is that it makes economic sense. Employing smokers cost more; plain and simple. The private sector has already recognized the value of not employing smokers and it is time that the federal government leads this trend and realizes the same benefits.

The federal government has already made incredible inroads on progressive smoking policies. The Army implemented a wide-ranging ban on smoking and the General Services Administration has implemented similar smoking restrictions. However, the federal government has yet to take the next step – the federal government has not established a comprehensive smoking policy. The federal government has not taken the step of recognizing the harm of employing smokers occurs not only during the working hours, but in the off work hours of smokers’ lives as well.

The sheer magnitude of federal government employment bears noting. The federal government employs over 2.7 million employees.[58] This makes the federal government the largest employer in the United States.[59] The ability to implement public policy and influence societal standards is unparalleled when taking into consideration the power the federal government wields.

The federal government should harness its unique position as the nation’s largest employer and implement an on and off work ban on smoking. As stated before, employing smokers create an economic burden: the burden of higher insurance premiums, more absenteeism, more medical problems, and more accidents at work.[60] The federal government currently sustains the costs of employee smokers and passes the costs on to the taxpayer. Ultimately, it is the taxpaying citizens that most foot the bill for the federal government’s decision to employ smokers. Why should the taxpayers of the United States pay for the hedonistic lifestyle choices of federal employees that choose to smoke?

The benefits of an on and off work ban on smoking are undeniable. Not only would the economic costs of employing smokers be recovered to the taxpayers, but a more productive and healthier workforce would be the lifeblood of the federal government. Additionally, the federal government would be making bold strides as the nation’s largest employer in promoting healthy lifestyle choice and progressive workplace standards – a model to the private industry and local government alike.

IV. The Leading Cases:

There has been relatively little litigation regarding on and off work ban on smoking. As mentioned above, the Massachusetts state-wide ban on employing smokers as firefighters and police officers has undergone very little litigation. Those cases that did address the Massachusetts statute cited the two and only major cases. These cases have become the foundation for discussion regarding on and off work smoking policies.

A. Grusendorf v. City of Oklahoma City:

The only federal court of appeals case to address an on and off work ban on smoking is Grusendorf v. City of Oklahoma City.[61] Grusendorf has become the starting point for assessing the legitimacy of on and off work bans on smoking. The facts of the case are relatively straightforward. In October of 1984 Greg Grusendorf was hired on as a firefighter trainee by the Oklahoma City Fire Department.[62] Upon being hired Mr. Grusendorf signed off on a form which indicated that he had read, understood, and agreed to abide by the Fire Department’s on and off work smoking ban for firefighter trainees.[63] While employed as a firefighter trainee, Mr. Grusendorf took three puffs from a cigarette while on an unpaid lunch break from his position with the Oklahoma City Fire Department.[64] The incident was reported to the Fire Department by another city employee.[65] Upon questioning by the fire chief, Mr. Grusendorf admitted he had smoked the cigarette.[66] Because of this admission, the fire chief terminated Mr. Grusendorf.[67]

Grusendorf filed suit in the district court for the Western District of Oklahoma “claiming his Constitutional rights of liberty, privacy, property and due process had been violated.”[68] The district court granted the City of Oklahoma City’s motion to dismiss and awarded the defendant attorney fees.[69] Mr. Grusendorf appealed the district court decision to the Court of Appeals for the Tenth Circuit.

On appeal, Mr. Grusendorf argued that the no smoking requirement for firefighter trainees infringed on his Constitutional rights of liberty and privacy.[70] The court pointed out that the rights of liberty and privacy, which Mr. Grusendorf was relying on, are not specifically articulated in the Bill of Rights.[71] Rather, such interests stem from “’penumbras’ emanating from the Bill of Rights.”[72]

Little textual guidance is given in the Bill of Rights to help determine the boundaries the protections that privacy and liberty provide. The court noted that the right to privacy has been extended to cases involving fundamental rights relating to marriage, procreation, contraception, family relationships, child rearing, and education.[73] In regards to whether there was a fundamental “right to smoke,” the court stated, “[t]hough we agree with the defendants that cigarette smoking may be distinguished from the activities involving liberty or privacy that the Supreme Court has thus far recognized as fundamental rights, we are not confident that this observation effectively disposes of the [sic] Grusendorf’s claim.”[74]

Citing Carey v. Population Services International,[75]the court went on to say that the outer bounds of what privacy entails have yet to be determined.[76] Thus, the court followed the approach in Kelley v. Johnson[77] in which Justice Rehnquist assumed the liberty interest in question existed under the Fourteenth Amendment of the United States Constitution.[78] As such, the court assumed arguendo that the right to smoke existed under, or encompassed rights protected under, the Fourteenth Amendment.[79] Through this framework, the court evaluated the Oklahoma City regulation for validity.

Even after assuming a liberty interest in the right to smoke, the court stated that “both the state and federal governments, as employers, have interests sufficient to justify comprehensive and substantial restrictions upon the freedoms of their employees that go beyond the restriction they might impose on the rest of the citizenry,” again citing Kelley.[80] Thus, because of the heightened interest the federal and state government has in regulating its employees, and even considering an assumed liberty interest in the right to smoke under the Fourteenth Amendment, a no smoking regulation is presumed to be valid.[81] Under the light of a presumption of validity, the court addressed whether the smoking ban adopted by the City of Oklahoma City Fire Department had a rational basis.[82]

First, pointing to the widely known health hazards of smoking, the court then stated that “good health and physical conditioning are essential requirements for firefighters.”[83] Therefore, a prima facie rational basis for the regulation had been established.[84] Once it is recognized that there was a rational basis for the regulation, the burden shifts to the plaintiff to show that the regulation is irrational or arbitrary.[85] As the court explained, Mr. Grusendorf failed to make such a showing.[86] Rather, Mr. Grusendorf erroneously contended that the defendants had an obligation to justify the regulation.[87] The court concluded, “[a]s we have seen in Kelley, however, the burden is upon Grusendorf to prove that the regulation is irrational and arbitrary. The initial burden is not upon the defendants to justify the rule.”[88] Therefore, the Tenth Circuit Court of Appeals unanimously affirmed the district court’s grant of summary judgment against Mr. Grusendorf.[89]

B. City of North Miami v. Kurtz

In 1995, the Florida Supreme Court addressed the question “[d]oes Article I, Section 23 of the Florida Constitution prohibit a municipality from requiring job applicants to refrain from using tobacco or tobacco products for one year before applying for, and as a condition for being considered for employment, even where the use of tobacco is not related to job function in the position sought by the applicant?”[90] The City of North Miami had enacted Administrative Regulation I-46, which required “all job applicants to sign an affidavit stating they had not used tobacco products for at least one year immediately preceding their application for employment.”[91] After the applicant has been hired, they are free to start smoking and the regulation only applied to new applicants – there was no retroactive application to current employees.[92] The city had adopted the policy in order to “reduce costs and to increase productivity.”[93] While it may seem slightly usual that the Administrative Regulation only applied to new applicants, the idea was that the regulation would gradually reduce the number of smokers working for the city through natural attrition.[94] Evidence was presented which suggested that “a high percentage of smokers who have adhered to the one year cessation requirement are unlikely to resume smoking.”[95]

The city estimated that the cost of employing a smoker over a non smoker was as high as $4,611 per employee per year.[96] This figure was calculated in 1981 dollars.[97] Adjusting this figure for inflation, the cost of employing a smoking employee over a non smoking employee in 2005 dollars would be a jaw-dropping $10,317.50.[98] The city argued that since it was self-insured, the extra medical costs of employing a smoker over a non smoker were passed on in totality to the taxpaying public.[99]

Arlene Kurtz, a smoker, applied for a clerical position with the City of North Miami and was informed of Administrative Regulation I-46.[100] She told the interviewer that she could not truthfully sign an affidavit attesting to being free from using tobacco products over the preceding year.[101] In accordance with Regulation I-46, the interviewer informed Ms. Kurtz that she would not be considered for the position until she could refrain from using tobacco products for a year.[102] Ms. Kurtz filed suit seeking to enjoin enforcement of the regulation and seeking declaratory judgment that the Administrative Regulation I-46 was unconstitutional.[103]

The trial court ruled against Ms. Kurtz on a motion for summary judgment.[104] Article I Section 23 of the Florida Constitution states:

Right of privacy – Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.[105]

The trial court recognized that Ms. Kurtz had a right to privacy, but that there was no expectation of privacy in employment and therefore, the city regulation did not violate either the Florida Constitution or the United States Constitution.[106]

The Third District Court of Appeal reversed the trial court stating that the regulation violated Ms. Kurtz’s privacy rights.[107] Although the district court recognized the city’s interest in saving taxpayers’ money and increasing productivity, the district court felt that these interest were not sufficient to justify an intrusion into Ms. Kurtz’s privacy.[108] The district court further stated that Mrs. Kurtz’s status as smoker had no relevance to the performance of her clerical duties.[109]

In a 5-2 decision, the Supreme Court of Florida reversed. The Court discussed the implication of Ms. Kurtz’s privacy rights both in terms of the Florida Constitution and the United States Constitution. As noted above, the Florida Constitution grants a specific right to privacy against government intrusion. The Florida Supreme Court noted that this right was not absolute.[110] According to the court, there must be a “legitimate expectation of privacy” for the freedom from intrusion to attach and even if there is such an expectation, that can be overridden by a compelling state interest.[111]

The court determined that no reasonable expectation of privacy existed.[112] Simply put: a person’s status as a smoker was not deemed to be within the scope of privacy protected by the Florida Constitution. The court explained, “[i]n today’s society, smokers are constantly required to reveal whether they smoke.”[113] Citing examples of revealing smoking preferences in circumstances such as seating preference in a restaurant, renting a room in a hotel or motel, and renting cars, the court concluded, “[g]iven that individuals must reveal whether they smoke in almost every aspect of life in today’s society, we conclude that individuals have no reasonable expectation of privacy in the disclosure of that information when applying for a government job and, consequently, that Florida’s right of privacy is not implicated under these circumstance.”[114]

After determining that Ms. Kurtz’s privacy rights under the Florida Constitution had not been implicated, the court turned to the issue of privacy under the United States Constitution. The court initially noted that “Florida’s privacy right provides greater protection than the federal constitution.”[115] Therefore, it was no surprise to see that the court found no infringement on Ms. Kurtz’s right to privacy under the United States Constitution.

Noting that, unlike the explicit right to privacy in the Florida Constitution, the United States Constitution only has an implicit privacy provision, which extends to a limited number of fundamental interests such as “marriage, procreation, contraception, family relationships, and the rearing and education of children.”[116] Citing Grusendorf, the court stated that the “right to smoke” clearly falls outside of the penumbra of fundamental rights protected by the United States Constitution.

Although that would have been enough to do away with Ms. Kurtz’s claim of protection under the United States Constitution, the court went on to say that even assuming arguendo “that some protected interest under the federal constitution were implicated so as to require a rational basis for the regulation we would still find the regulation to be constitutional.”[117] The court reiterated the rational basis the city had for enacting the regulations: reducing health costs and increasing productivity.[118] For these reasons, the court concluded that the city had a compelling state interest in instituting the regulation and that the regulation was narrowly tailored.[119] Thus, even under strict scrutiny, such a regulation would pass muster under the United States Constitution.

In a dissenting opinion, Justice Kogan, joined by Justice Shaw, stated that the fact that employees, once hired, could began smoking showed that the regulation was a “a speculative pretense” and therefore unconstitutional under the right of due process.[120] The dissenting opinion seemed to disregard the evidence cited by the majority that “a high percentage of smokers who have adhered to the one year cessation requirement are unlikely to resume smoking.”[121] Additionally, the dissent’s equal protection complaint would seemingly be answered by a uniform enforcement of the smoking ban after the applicant was hired, as is advocated in this paper. Although such a regulation would be “more intrusive” because of its ongoing effects, it would eliminate the “concession” on which Justice Kogan based his dissenting opinion.

The dissent goes on to make a “slippery-slope” argument – essentially arguing that if smoking status is allowed to be used as an employment criterion, there would be no telling what else could be considered appropriate on which to base employment decisions. The “slippery-slope” argument will be addressed in Part VI of this paper.

In the wake of the Kurtz decision, the City of St. Cloud, Florida adopted a similar regulation to the one at issue in Kurtz. The St. Cloud ordinance requires all applicants to city government jobs to sign an affidavit swearing they have not used tobacco in the past 12 months and also agreeing to submit to tests at the discretion of management to ensure compliance with the ordinance.[122] The St. Cloud ordinance is slightly more invasive than the regulation at issue in Kurtz because the ordinance regulates all tobacco use, not just cigarette smoking as well as requiring the submission to testing by management.[123] As of the writing of this paper, this author was unaware of any challenges to the St. Cloud statute.

V. An On and Off Work Smoking Ban and Privacy:

The main argument against an on and off work smoking ban, evidenced by the cases that have addressed the issue, is the argument that such a ban infringes on the individual’s right to privacy. While the Fourth Amendment provides the right to be free from unreasonable searches and seizures, the general right to privacy is not explicitly stated in the United States Constitution. However, a limited right to privacy has been inferred from a penumbra of several provisions of the Constitution, most notably the due process provisions.[124] In Griswold v. Connecticut, Justice Douglas explained, “[s]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”[125] However, this right is not absolute and as discussed below, the smoking status of an employee does not fall under the privacy protection of the United States Constitution.

The decision to smoke is not a private decision. First, the effects of smoking affect other people. As noted above, the estimates on yearly deaths resulting from secondhand smoke are as high as 53,000 deaths per year. The fact that thousands of innocent lives are lost every single year as the result of peoples’ decision to smoke, makes that decision decidedly public. A similar analogy can be drawn to drunk driving. While the decision to drive drunk may itself be a “private” choice, the public risk that drunk drivers pose makes the decision a decidedly public decision – one deserving the punishment of the law. Similarly, when the effects of the “private” decision to smoke kills tens of thousands of people every year, the private nature of the decision is eclipsed by the very public effects of the decision to smoke.

Along the same lines, the yearly economic cost smoking imposes on society is a staggering $157 billion.[126] It is hard to even comprehend how $157 billion dollars can be lost in the ashes of smokers every single year. This economic inefficiency affects smokers and non smokers alike. As taxpayers, the productivity and health care costs of employing smokers in the federal government are passed on directly through increased cost to the federal government and subsequently to the taxpayer. Again, the “private” decision to smoke is eclipsed by the very public nature of the economic effects of smoking.

Second, society does not value the privacy of the decision to smoke as it does other decisions that the Supreme Court has recognized under the privacy penumbra. Decisions that have been deemed to fall under the privacy protection of the United States Constitution have a decidedly private overtone. The right to smoke lacks the characteristics of a “fundamental right.” In Palko v. Connecticut, Justice Cardozo defined a fundamental right as one that implicates a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental…”[127] The fundamental rights that have been currently recognized have included marriage, procreation, contraception, family relationships, child rearing and education.[128]

Smoking status lacks the personal and intimate nature of other areas that the Supreme Court has deemed to be under the Constitution’s privacy protection. Asking someone whether they smoke does not carry with it the same type of personal inquiry connotations as asking someone about the type of contraception they use. In fact, smoking status, and different treatment as a result of smoking status, is commonplace. As noted by the Florida Supreme Court in Kurtz, smoking status must be revealed in nearly “every aspect of life in today’s society.”[129] A quick look at property rental listings in a major newspaper will reveal that rental decisions are frequently conditioned on smoking status – so much so that the words are often not even spelled out. Instead, the preference has become so commonplace that “n/s” is frequently used to signify no smoking. It is hard to argue that a distinction that is so publicly discussed falls under the realm of a fundamental right to privacy.

As the Grusendorf and Kurtz decisions suggest, a privacy attack on an on and off work smoking ban is unlikely to be successful. Lewis Maltby and Bernard Dushman note:

Following Grusendorf, a substantive attack on a no smoking policy would not have much chance of success. As a practical matter, the success of a due process attack on a governmental regulation turns on whether the court finds that the interest is fundamental. The Grusendorf court’s conclusion that the Supreme Court would be unlikely to expand the world of fundamental rights to include the right to smoke is probably incontrovertible.[130]

While the scope of the privacy protection under the United States Constitution has arguably been expanded in the recent Supreme Court case Lawrence v. Texas,[131] it still seems unlikely that the right to smoke would be encompassed in the privacy protection afforded by the United States Constitution. A right to smoke simply does not seem to fit into the same type of activities that the Supreme Court has recognized as being within the scope of privacy protection under the United States Constitution.[132]

If a right implicated is not deemed fundamental, “[t]he state regulation of a public employee carries a presumption of correctness, and the employee challenging the regulation has the burden of proof in establishing that it is not rationally connect to the state end.”[133] In other words, the burden would be on the plaintiff to show that the regulation in question was “so irrational that it may be branded ‘arbitrary,’ and, therefore a deprivation of [one’s] ‘liberty’ interest in [personal matters].”[134] This is a rather onerous task given the fact that employing smokers costs more than employing non smokers. The defendant would simply have to show a rational basis to justify a challenged regulation. As was successfully argued in Kurtz, the economic cost of employing a smoker seems like it would clearly be enough to establish a rational basis.

In the off chance that the right to smoke is deemed a fundamental interest, such a regulation would have to pass strict scrutiny. To pass strict scrutiny, a regulation must be narrowly tailored and be tied to a compelling state interest.[135] Kurtz suggests that an on and off work smoking ban would even pass a strict scrutiny analysis required by the implication of a fundamental interest.[136] As explained above, it is unlikely that strict scrutiny analysis would be applied to a smoking regulation, given the fundamental rights analysis, but even if strict scrutiny were applied, Kurtz suggest that this would not be fatal to such a regulation.

VI. Other Arguments Against an On and Off Work Smoking Ban:
A. The Slippery Slope Argument:

Justice Kogan in his dissenting opinion in Kurtz raised the argument that conditioning employment on off work smoking behavior could lead to a slippery slope where a variety of other off work behaviors would be used for employment decisions.[137] Other commentators have made similar arguments stating that bans on employing smokers could lead to inquires into other aspects of off work life such as “sexual activity, recreational activities such as skiing, scuba diving and motorcycling, and exercise habits.”[138] The slippery slope argument is flawed for three reasons:

1. Off work factors are already regularly and frequently used to make employment decisions. Job applications frequently ask whether the applicant has any criminal history. While a criminal conviction may reflect on the character of the job applicant, it is not necessarily suggestive of how the applicant will perform the specific duties of a particular job. For example, it may relevant for a taxi cab company to know if an applicant had any felony driving under the influence convictions, but it would be entirely irrelevant to job performance if the applicant had been convicted of disturbing the peace while throwing a party when he or she had just reached the age of majority. Yet, criminal conviction status goes without question on many job applications.

Other factors such as whether the applicant has a reliable automobile are also frequently inquired about on job applications. These questions delve into the “private,” off work behavior and life of the job applicant. While they may be tangentially relevant to the job, a case for relevancy of smoking status could equally be made. Yet questions such as whether the applicant has a reliable car are routinely tolerated.

Moreover, there hasn’t been an opening of the floodgates as suggested by some slippery slope theorists.[139] As previously noted, in a large number of companies, municipalities and even on a state-wide level, employment decisions are being made based on smoking status. The Massachusetts statute discussed above and the regulations at issue in Grusendorf and Kurtz are all nearly two decades old. If the floodgates were to be opened by walking down the slippery slope of off work behavior regulations – then where is the flood?

2. The regulation of smoking is unique. Smoking is the leading cause of preventable death.[140] Nearly half a million people die premature deaths as a result of smoking every single year. The magnitude of the harms of smoking simply cannot be overstated. As a result, there are unique policy reasons to implement smoking policies through employment decisions that do not exist with other off work behavior. As critics have suggested, behaviors such as skiing could be taken into consideration if bans on smoking were allowed.[141] However, the amount of deaths from smoking dwarves the number of deaths from skiing. Additionally, smoking provides very little utility. [142] While the act of smoking may bring some sense of pleasure, the overall utility of the product seems debatable. On the other hand, the utility of skiing – exercise, appreciation for the outdoors, etc. – is readily apparent.

3. Smoking is not an entirely off work activity. First, because of the addictive nature of nicotine, many people smoke during working hours. However, even assuming that an employee does smoke solely off work, the effects of smoking spill over into the working environment. As stated above, smokers are simply not as productive as non smokers. Their habit affects their ability to concentrate and they have higher rates of accidents due to smoking side effects such as coughing.[143] Just as everyone is familiar with the experience of bringing the smell of smoke home on clothes after being in a smoky room, smokers carry with them the effects of their habits even after their cigarettes are extinguished.

In this sense, smoking can clearly be distinguishing from the slippery slope argument made by Justice Kogan in the Kurtz dissent. Justice Kogan suggested that inquiring into smoking status would lead to other off work behavior inquiries: “an obvious example would be an inquiry into the lawful sexual behavior of a job applicant.”[144] The effects of sexual behavior and/or sexual orientation would have no discernable effect on job performance.

B. The Issue of Popularity:

Another argument put forth by critics of an on and off work ban on smoking is that there is little public support for such a policy.[145] One poll suggested that 87 percent of respondents were opposed to an employer’s decision to not hire smokers.[146] Although this figure would suggest a staggering opposition to on and off work smoking ban, it is important to question the roll of popularity in formulating employment policies and decisions.

Employment decisions often represent a tension between the interests of the employees and the employers. What is beneficial for an employer may be harmful to an employee. Smoking policies certainly interject tension between the employee and the employer. Smoking employees feel that their rights are being taken away while employers want to pursue the economic benefits of regulating smoking. Therefore, such polices are not likely to be popular with employees, particularly smoking employees. By the very hierarchical nature of capitalist structures and entities, there are more employees than employers. Thus, it shouldn’t be expected for smoking policies to be particularly popular – many employee regulations are not.

However, this does not mean that an on and off work ban on smoking is any less valid or effective. The objectives and economic benefits of an on and off work smoking ban would be realized regardless of the popularity. The focus should be more on the popularity of the underlying policy goals. It goes without saying that saving taxpayers’ money is a popular proposition. Additionally, it would be hard to argue that promoting overall health is an unpopular proposition. Therefore, the popularity of the means to achieve overall beneficial and popular ends should not be a determining factor in the validity and feasibility of a policy.

The popularity of a policy simply does not dictate the ability to realize the goals of that policy. Moreover, what is popular isn’t always the best course of action. To use an extreme example, the Nazi party enjoyed popular support. While an on and off work smoking ban may not be the most publicly popular policy, that fact makes it no less capable of achieving the policy goals behind the such a regulation.

VII. Conclusion:

Cigarette smoking is the leading cause of preventable death. Moreover, it costs the United States economy $157 billon per year – that is over $430 million every single day. It is time that the federal government stops passing the costs of employing smokers on to the taxpaying public. The federal government must use its power as the nation’s largest employer and take a stand on employing smokers. The proper means to achieve such ends is an on and off work ban on smoking such as the following:

Subsequent to [month and day], [year], no person who smokes any tobacco products shall be eligible for appointment in a position with the federal government and no person appointed in any such capacity should continue in such employment if the person smokes any tobacco products thereafter. This statute shall not apply to current employees, but instead, shall be phased in from the effective date of this statute. The various federal agencies and departments shall promulgate regulations for the implementation of this statute.

This statute is similar to the regulations that have been upheld in Grusendorf and Kurtz.

While such a statute would be subject to a constitutional challenge centering around infringement on privacy, it is unlikely that such a challenge would be successful. Under the only cases that have addressed issue, on and off work smoking bans have been held to be constitutional. In fact, many private and public employers have already successfully implemented such smoking bans.

A statute such as the one proposed would demonstrate that the federal government was sending a strong signal to the tobacco industry and smokers across the nation that the economic and social costs of smoking will not be condoned by the government. An on and off work smoking ban for federal government employees would clearly signal that the costs of hedonistic lifestyle choices with little or no utility should not be borne by the people of the United States. Taxpayers simply deserve more for their money. Smoking is a lifestyle choice – a choice that has been shown to cost billons of dollars every year in healthcare costs and productivity. It is time that the federal government follows what private industry, state and municipal governments has already started to do: ban smoking both on and off work for its employees.

[1] Ann H. Zgrodnik, Smoking Discrimination: Invading an Individual’s Right to Privacy in the Home and Outside the Workplace?, 21 Ohio N.U.L. Rev. 1227, 1243-1244 (1995).

[2] Elizabeth B. Thompson, The Constitutionality of an Off-Duty Smoking Ban For Public Employees: Should the State Butt Out?, 43 Vand. L. Rev. 491, 499 (1990).

[4] David B. Ezra, “Get Your Ashes Out of my Living Room!”: Controlling Tobacco Smoke in Multi-Unit Residential Housing, 54 Rutgers L. Rev 135, 142 (2001).

[9] Matthew A. Swartz, Snuffing Out Tobacco: The City of St. Cloud’s Attempt to Ban Tobacco Use in the Name of Healthcare Reform; Can Everything Be a Special Need?, 20 J. Contemp. Health L. & Pol’y 181, 187 (2003).

[16] Kathleen Sablone, A Spark in the Battle Between Smokers and Non smokers: Johannesen v. New York City Department of Housing Preservation & Development, 36 B.C. L. Rev. 1089, 1092 (1996).

[21] Center for Disease Control Morbidity and Mortality Weekly Report, April 12, 2002. Available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5114a2.htm. (hereinafter MMWR)

[23] Sally L. Venverloh, The Harkin Amendment: The Constitutionality of Limiting Deductions for Tobacco Advertising, 13 St. Louis U. Pub. L. Rev. 787, 799 (1994).

[25] Jon D. Anderson, Parental Smoking: A Form of Child Abuse?, 77 Marq. L. Rev. 360, 361 (1994).

[27] Frederic Theodore Le Clercq, Smoking in the Workplace, 43 LA Bar Jnl. 452, 453 (1996).

[32] Id. and Mark A Rothstein, Refusing to Employ Smokers: Good Public Health or Bad Public Policy?, 62 Nortre Dame L. Rev. 940, 946 (1987).

[33] Jimmy Goh, Smokers Need Not Apply: Challenging Employment Discrimination Against Smokers Under the Americans with Disability Act of 1990, 39 Kan. L. Rev. 817, 823 (1991).

[37] Andrew M. Kramer and Laurie F. Calder, The Emergence of Employees’ Privacy Rights: Smoking and the Workplace, 8 Lab. Law. 313, 322 (1992).

[58] Office of Personnel Management, Employment Trends, Table 1 (Sept. 2004). Available at http://www.opm.gov/feddata/html/2004/september/table1.asp.

[59] Jeremy R. Meredith, Sprawl and the New Urbanist Solution, 89 Va. L. rev. 447, 477 (2003).

[72] Id. citing Griswold v. Connecticut, 381 U.S. 479, 484 (1964).

[90] City of North Miami v. Kurtz, 653 So. 2d 1025, 1026 (1995).

[98] Figure calculated using inflation calculator found at http://www.westegg.com/inflation. This states that it is using the Consumer Price Index information from Statistical Abstracts of the United States.

[124] H. Ward Classen, Restricting the Right to Smoke in Public Areas: Whose Rights Should be Protected?, 38 Syracuse L. Rev. 831, 833-840 (1987).

[130] Lewis L. Maltby and Bernard J. Dushman, Whose Life is it Anyway – Employer Control of Off-Duty Behavior, 13 St. Louis U. Pub. L. Rev. 645, 648 (1992).

[134] Kelley v. Johnson, 425 U.S. 238, 247-248 (1976).

[138] Renee M. Szobonya, City of North Miami v. Kurtz: Is Sacrificing Employee Privacy Rights the Cost of Health Care Reform?, 27 U. Tol. L. Rev. 545, 565 (1996).

[142] Robert F. Cochran, Jr., Beyond Tobacco Symposium: Tort Issues In Light of the Light of the Cigarette Litigation: From Cigarettes to Alcohol: The Next Step in Hedonic Product Liability?, 27 Pepp. L. Rev. 701, 710 (2000).

[146] Andrew M. Kramer and Laurie F. Calder, The Emergence of Employees’ Privacy Rights: Smoking and the Workplace, 8 Lab. Law. 313, 323 (1992).