By Cameron Betterley, Albany Government Law Review
I. A Widespread Problem
The devastating health effects of tobacco use are well documented and widely known. Tobacco use is the number one cause of preventable death in the United States, resulting in 480,000 deaths annually, or approximately one of every five deaths each year. Twenty-five thousand of those deaths occur in the State of New York. Indeed, “more deaths are caused each year by tobacco use than by all deaths from [h]uman immunodeficiency virus (HIV), [i]llegal drug use, [a]lcohol use, [m]otor vehicle injuries, [f]irearm-related incidents.” The adverse health effects are not limited to smokers, as exposure to secondhand smoke causes approximately 42,000 deaths per year in the United States—2,500 of those who die are New Yorkers. Moreover, while extraordinary progress has been made in the last fifty year—“reductions in smoking prevalence avoided an estimated 3 million deaths between 1964 and 2000”—efforts have been less successful with the poor and the less educated. In 2006, for example, 30% of the least educated were smokers, while only 9% of the most educated were.
II. No Right to Smoke
Federal law does not protect tobacco users or entitle them to equal protection in all aspects of employment, including hiring, firing, and promotions. The Equal Employment Opportunity Commission, for example, does not recognize tobacco users as a protected class. However, twenty-nine states and the District of Columbia currently offer employment protections to tobacco users through laws “that expressly prohibit employers from taking adverse employment actions on an employee’s off-duty legal conduct such as smoking[.]”
New York, which is among these states, actually goes further, prohibiting an employer from firing or from refusing to hire or employ an employee due to his or her legal use of any consumable products outside of work. This article argues that New York law should be amended to allow employers in New York to fire, or to refuse to hire, employees or potential employees who smoke or otherwise consume tobacco.
III. An Act to Amend the Labor Law
New York State is an “employment-at-will” state, meaning that “[i]f there is no contract to restrict hiring . . . an employer has the right to discharge an employee at any time for any reason.” This allows an employer to fire an employee “for a reason that might seem arbitrary and unfair,” or for no reason at all. However, section 201-d of the New York State Labor Law currently prohibits an employer from firing, or refusing to hire or employ an employee for legal use of consumable products outside of work. In order to aid in tobacco control and prevention efforts in New York, I propose amending the Labor Law to exempt tobacco products from the list of consumable products that cannot otherwise form the basis for an adverse employment decision. The proposed statutory change is as follows:
Section 1. Subdivision 1 of section 201-d of the labor law, as amended by chapter 778 of the laws of 1992, is amended to add the following paragraph (d):
d. “Tobacco product” shall mean one or more cigarettes or cigars, bidis, chewing tobacco, powdered tobacco, nicotine water or any other tobacco products.
§ 2. Paragraph (b) of subdivision 2 of section 201-d of the labor law, as amended by chapter 778 of the laws of 1992, is amended to read as follows:
b. an individual’s legal use of consumable products, other than tobacco products, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property;
The proposed amendment to the definitions section of section 201-d adds “tobacco products.” For consistency purposes, it is defined to mirror the definition of “tobacco products” set forth in section 1399-aa of the New York State Public Health Law (the definitions section of Article 13-F, which, among other things, sets forth the regulation of tobacco products). This definition lists the main types of tobacco products that are used by New Yorkers each day. It is included in the amended statute to provide clarity regarding exactly what is being changed in the existing statute. While cigarette use is the primary target of this legislation, other tobacco products also cause serious health problems, leading to increased health care costs. The phrase “or any other tobacco products” at the end of the definition, although redundant, is included to ensure that the definition encompasses any tobacco product that is not specifically mentioned.
The obvious reason to include the language “other than tobacco products” in the proposed change to paragraph (b) of subdivision 2 of section 201-d of the labor law is to allow New York State employers to lawfully refuse to hire, employ or license, or to discharge from employment potential and current employees who consume tobacco products prior to the beginning of, or after the conclusion of, the employee’s work hours. Section 201-d, as currently written, provides a broad set of protections to employees. This amendment curtails the statute only to the extent that it applies to tobacco products. By inserting those four words rather than, say, repealing section paragraph (b) altogether, the scope of the legislation is limited to an employee’s use of tobacco products. Were paragraph (b) to be repealed, it would lawfully allow employers to also refuse to hire or employ, or refuse to discharge an individual for his or her legal use of any consumable product outside of work. Individuals could be fired or refused employment, e.g., for alcohol or caffeine consumption, and presumably other habits as well.
There is no question that further discussion is needed regarding whether the law should be amended or repealed to include alcohol or other consumable habits. Alcohol, for example, is responsible for 85,000 deaths each year, and it may very well be prudent to consider whether employers should be allowed to consider a potential or current employee’s alcohol consumption as a factor in employment decisions. However, limiting the scope of the legislation to tobacco products will help assuage the concerns of those who may view this legislation as “pushing the envelope of what . . . [is] an acceptable level of employer intrusion into employees’ ‘outside’ lives.” Regardless of its merit, many will contend that repealing the statute would lead to a slippery slope–that if an individual could be fired for being a smoker, or a drinker, the list could be easily extended to include more innocuous activities. Although this concern to some extent remains even with this proposed legislation, the legislation is very specific, so the concern that employers might try to control other aspects of an employees’ lawful off-duty activities is at least limited. At the same time, this legislation leaves open the option of future changes (assuming sufficient debate and discussion, of course). It is a compromise that is limited in scope.
It has been stated that “[t]obacco has been called the smallpox virus of chronic disease—a harmful agent whose elimination from the planet would benefit humankind.” By allowing employers the opportunity to make tangible employment decisions based on the tobacco habits of potential and actual employees, a strong incentive is provided for employees and potential employees to give up tobacco use. As further discussed below, the medical care and lost productivity costs associated with tobacco use are staggering, and the proposed legislative change furthers the legitimate and important governmental interests of maintaining public health and controlling skyrocketing health care costs. Employers trying “to cut health care costs naturally look to reduce unhealthy behaviors, and perhaps none is more preventable than smoking.” This legislation is intended to alleviate some of these costs and make people healthier. A majority of Americans under the age of 65 receive their insurance through their employer, so the more employers who switch to tobacco-free employment, the more healthcare costs will drop for a huge portion of society.
In fiscal year 2010, New York State took in $1.4 billion in tax revenue from tobacco, and $841 million in settlement payments from tobacco-related lawsuits. However, current state investment in tobacco control represents only ten percent of those figures. Section 201-d of the labor law—the provision of New York law sought to be amended—“grew out of efforts by the tobacco lobby,” which spends nearly $430 million a year in marketing in New York, “to prevent employers from discriminating against employees who smoke.” Amending the law would put a dent in the influence of tobacco companies in New York by specifically amending the portion of the statute most relevant to them. Moreover, the legislation would do nothing to deny tobacco users the right to consume tobacco products, nor would it force employers to deny tobacco users from employment; what it does do is give hospitals, schools, and all other employers the discretion not to hire them.
Opponents contend that removal of this protection for tobacco users is a drastic measure with little benefit. They argue that because the unemployed already consume tobacco at much higher rates than the fully-employed, this policy “disproportionately and unfairly affect[s] groups that are already burdened by high unemployment rates, poor job prospects, and job insecurity.” This is a legitimate concern, and when coupled with the added concern that smokers are unfairly penalized for behavior that may be less than voluntary (due to the addictive properties of nicotine and the fact that many smokers began before the age of eighteen), there is a sound argument against this proposal. However, many of the anti-smoking measures (e.g., higher taxes on cigarettes, banning smoking in the workplace) of the past forty years could be said to have disproportionately affected the poor and less educated, and yet “[b]etween 1974 and 2007, cigarette smoking declined 38% among the least educated.” This measure, like many before it, is an additional tool to educate the poor and less educated about the harmful and dangerous effects of tobacco consumption. Balances and tradeoffs must clearly be made, and the benefits of this amendment to the Labor Law clearly outweigh any negative consequences. At the same time, actions should be taken to ensure that any adverse impacts on the poor as a result of this measure are softened. These actions may include, among other things, continued education and increased access to tobacco-cessation programs.
Providing employers with the opportunity to make adverse employment decisions based on individuals’ choices to consume tobacco helps expand an extremely important debate in this country—how to deal with the massive public health problem of tobacco consumption. Indeed, “policies against hiring smokers shift the debate from the question of where one smokes to that of whether one smokes.” This policy could not only save lives, it could affect social norms. We are often reminded, for example, “of how far we have come in our tolerance for restricting [tobacco use]”. Many Americans now see it as completely normal that “most workplaces are smoke-free and that smoking is prohibited in many bars and restaurants.” If more and more employers were to go tobacco-user-free, it too could become the new normal and perhaps induce more individuals who consume tobacco to reconsider their habits.
There very well may be better, or more comprehensive, ways to reduce tobacco usage rates. However, this is not a justification for not addressing the problem of tobacco use in New York and across the country. Legislation does not need to fix every unhealthy practice at once. At times, it may be more realistic, and indeed more beneficial, to address a problem step-by-step.
That is just what this legislation does–it addresses a problem (increased health care and lost productivity costs) and attempts to solve a portion of it.
V. Further Cost Justifications
The costs associated with smoking are overwhelming. Nationwide, “[c]igarette smoking costs more than $193 billion” each year and “[s]econdhand smoke costs more than $10 billion” a year. In New York, the total annual medical costs to treat smoking caused disease is $8.17 billion, while the loss in productivity due to smoking is $6.05 billion.
Though estimates vary, smokers tend to cost employers $3,000-$4,000 more annually than nonsmokers. With passage of this legislation, employers who choose to employ a tobacco-free workforce could anticipate a healthier workforce. Employees would likely have lower premium rates than otherwise similarly situated groups of tobacco-users (i.e., tobacco users in similar employment), and the cost of providing coverage to these tobacco-free employees would be significantly lower than the cost for tobacco-users.
Compared to overall health care expenditures, the amount of money dedicated to government public health activities designed to prevent illness is small. In 2009, for example, “the United States spent $2.5 trillion on health care,” but only 3% of that was dedicated to prevention-based activities. To battle chronic disease, “society must search for ways to reduce the consumption of tobacco.” The role of prevention in reducing health care costs deserves a larger role in discussions about health care expenditures, and this legislation is a dedicated step in that direction.
The overarching public health approach to prevention “seeks to reduce disease in the population as a whole.” This legislation provides employees (or potential employees) with, depending on how one looks at it, a financial incentive (to earn money) or disincentive (the prospect of termination) to quit using tobacco, with the attendant reduction in health care costs to both the employer and employee. If this legislation were to be enacted, an individual who was persuaded by this law to quit smoking in order to be eligible for an employment opportunity, and then received the job, would end up costing the employer $3,000-$4,000 less annually than a similarly situated tobacco-user.
This legislation is a helpful preventive measure. It seeks to reduce the incidence of illness in the State of New York as a whole by averting the occurrence of diseases caused by, or related to, tobacco use. The promotion of healthy behaviors before the onset of symptoms reduces the likelihood of any tobacco-related conditions occurring. One study has shown, for example, that “[a] 1% annual decline in adult smoking rates in the U.S. has been estimated to result in . . . cumulative health savings of over $1.5 billion over five years, with rapidly growing annual savings in the following years.” This legislation could help reduce the health care system’s burden by convincing people to change their tobacco-use lifestyles, “thereby reducing the costs associated with paying to treat preventable conditions.”
 The True Cost of Smoking, American Cancer Soc’y, http://www.cancer.org/research/tobacco-related-healthcare-costs (last visited Mar. 31, 2014).
 Smoking & Tobacco Use Fast Facts, Ctrs. for Disease Control and Prevention, http://www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/ (last visited Mar. 31, 2014) [hereinafter Smoking Fast Facts].
 The Burden of Tobacco Use and Secondhand Smoke, N.Y.S. Dep’t of Health, http://www.health.ny.gov/prevention/tobacco_control/ (last visited Mar. 31, 2014).
 Health Effects of Cigarette Smoking, Ctrs. for Disease Control and Prevention, http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/effects_cig_smoking/index.htm (last visited Mar. 31, 2014) [hereinafter Health Effects of Cigarette Smoking].
 Smoking Fast Facts, supra note 2; Tobacco-Related Mortality, Ctrs. for Disease Control and Prevention, http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_related_mortality/ (last visited Mar. 31, 2014) [hereinafter Tobacco-Related Mortality]. Also called environmental tobacco smoke, this exposure “causes 7,333 annual deaths from lung cancer” and “33,951 annual deaths from heart disease.” Tobacco-Related Mortality, supra note 5.
 The Burden of Tobacco Use and Secondhand Smoke, supra note 3.
 Thomas Bodenheimer & Kevin Grumbach, Understanding Health Policy: A Clinical Approach 139 (2012).
 Id. at 140.
 See generally Discrimination by Type, U.S. Equal Emp’t Opportunity Comm’n, http://www.eeoc.gov/laws/types/ (last visited Mar. 31, 2014).
 See Stephen Keyes, Can Employees Be Fired for Off-Duty Smoking or Other Lawful Consumer Activities Outside of Work? (It Depends on What State They’re In), 201 Empl. L. Couns. Art. I, *1–5 (2007). Those states are California, Colorado, Connecticut, Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, Wisconsin, and Wyoming. Id. at *2–5.
 Keyes, supra note 10, at 1.
 Wages and Hours: Frequently Asked Questions, N.Y.S. Dep’t of Labor, http://www.labor.ny.gov/workerprotection/laborstandards/faq.shtm#15 (last visited Mar. 31, 2014) [hereinafter Wages and Hours]. An employer cannot, however, discriminate on the basis of age, creed, gender, handicap, marital status, national origin, or sexual orientation. Id.
 N.Y. Lab. Law § 201-d (2012); See also Wages and Hours, supra note 12.
 Italicized language is proposed new language.
 Bodenheimer & Grumbach, supra note 7, at 137.
 Keyes, supra note 10.
 Laws and legislation related to tobacco are always controversial, so it is admittedly difficult to say with any certainty that this legislation is politically tenable in New York’s legislative environment.
 Bodenheimer & Grumbach, supra note 7, at 139.
 Tristan Lejeune, Want to Ban Smoking? Watch Out For State Laws, Emp. Benefit News (Dec. 20, 2012), http://ebn.benefitnews.com/news/employers-seek-ban-smoking-watch-out-state-laws-2729808-1.html.
 Hubert Janicki, U.S. Census Bureau, P70-134, Employment-Based Health Insurance: 2010 (2013).
 Leading the Way Toward a Tobacco-Free Society, Tobacco Control Program, N.Y.S. Dep’t of Health, (2010-2013), available at http://www.health.ny.gov/prevention/tobacco_control/docs/leading_the_way_2010-2013.pdf.
 Id.; New Law Protects New York Employees From Discrimination Based on Legal Off-Duty Conduct, Kauff McGuire & Margolis LLP (Oct. 1, 1992), http://www.kmm.com/archived-article.html?id=33 (last visited Mar. 31, 2014).
 Harald Schmidt, Kristin Voigt & Ezekiel J. Emanuel, The Ethics of Not Hiring Smokers, New Eng. J. Med. (Apr. 11, 2013), http://www.nejm.org/doi/full/10.1056/NEJMp1301951?query=TOC&.
 Bodenheimer & Grumbach, supra note 7, at 140.
 To balance opposition to the legislation, language could be included in the legislation to expand tobacco-cessation programs, or to provide more overall funding for anti-tobacco measures.
 David A. Asch, Ralph W. Muller & Kevin G. Volpp, Conflicts and Compromises in Not Hiring Smokers, New Eng. J. Med. (Apr. 11, 2013), http://www.nejm.org/doi/full/10.1056/NEJMp1303632?query=TOC.
 See infra Section III for a discussion of why this legislation only amends the labor law as it pertains to tobacco use.
 Fast Facts, Morbidity and Mortality (Related to Tobacco Use), Ctrs. for Disease Control and Prevention, available at http://www.cdc.gov/winnablebattles/tobacco/pdf/Tobacco_WB_FastFacts.pdf (last visited Apr. 6, 2014) (97 billion of this is due to lost productivity, while 96 billion results from health care expenditures).
 Id. This figure covers health care expenditures, morbidity, and mortality. The states, as a whole, are not doing their part to adequately control this problem. In 2013, for example, “states will collect $25.7 billion from tobacco taxes and legal settlements, but states are spending less than 2%” of this money on tobacco control programs. Smoking Fast Facts, supra note 2 at 2.
 Leading the Way Toward a Tobacco-Free Society, supra note 22.
 Schmidt, Voigt & Emanuel, supra note 25; Wendy Koch, Workplaces Ban Not Only Smoking, But Smokers Themselves, U.S.A. Today (Jan. 6, 2012, 1:31 AM), http://usatoday30.usatoday.com/money/industries/health/story/2012-01-03/health-care-jobs-no-smoking/52394782/1.
 Bodenheimer & Grumbach, supra note 7, at 135. The 3% figure represents public health activities such as “water purification systems, the banning of cigarette smoking in the workplace, and public health education on human immunodeficiency virus (HIV) prevention in schools.” Id.
 Id. at 138.
 Id. at 137.
 Schmidt, Voigt & Emanuel, supra note 25, at 1369.
 Larry Cohen et al., Reducing Health Care Costs Through Prevention 3–4 (Prevention Inst. and the Cal. Endowment with The Urban Inst., Working Document, Aug. 2007), available at http://www.preventioninstitute.org/component/jlibrary/article/id-79/127.html.
 Id at 1.