Printed with permission from Paul Malon

Hospitals and cigarettes embody fundamentally contradictory notions: one is where people go to seek health, and the other is the nation’s number one cause of preventable disease and death, according to the Centers for Disease Control and Prevention (CDC) website. It should come as no surprise that hospitals have made various attempts over the years to curb smoking on their premises. A 2009 New York Times article by Sewell Chan quotes Christine Quinn of the New York City Council, who said patients “shouldn’t have to walk through plumes of smoke on the way to see their doctor.”

A landmark effort came in 1992, when the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) banned smoking inside US hospitals. Employees of the affected hospitals began to quit smoking at higher rates than employees elsewhere in the community and were also more likely to stay smoke-free after quitting, according to research published in the Journal of the American Medical Association in 1996 by Daniel Longo of the University of Missouri-Columbia.

Despite the ban’s achievements, many hospitals felt that it did not do enough, as evidenced by the fact that some hospitals have gone on to implement a series of more stringent policies. Although the ban curtailed smoking within hospital walls, it did nothing to address outdoor smoking on hospital premises. For many hospital employees, the ban simply meant that they needed to move their smoke breaks from the hallway to the sidewalk. Some hospitals—including Yale-New Haven Hospital—decided to limit this practice by restricting smoking to designated outdoor areas. In a 2008 Yale-New Haven Hospital Press Release, the hospitals’s vice president of human resources said, “Smoking is the leading cause of preventable disease and death in this country, and as a leading healthcare institution, we believe this is the right thing to do.” Today, anyone walking by Yale-New Haven Hospital around lunchtime will see clouds of smoke surrounding clusters of people clutching cigarettes—many of them wearing hospital uniforms. The sidewalk across from the hospital entrance is perpetually strewn with cigarette butts.

Is there something wrong with patients walking past smoking nurses and stepping over cigarette butts on the way to see their doctors?

Many hospitals are starting to see this as a real problem. In fact, it is estimated that over half of accredited hospitals in the United States have instituted completely smoke-free medical campuses, according to research published in 2009 in Tobacco Control by Scott Williams of the JCAHO. Arkansas even passed legislation prohibiting smoking on all hospital campuses statewide, according to an article published in 2009 in the International Journal of Environmental Research and Public Health by Christine Sheffer of the University of Arkansas. The same article reports that hospital administrators lauded the legislation for taking the pressure off individual hospitals to implement the ban unilaterally. Whether implemented as a result of hospital policy or state policy, research published in 2010 in the Journal of Hospital Medicine by Anne Gadomski of the Bassett Research Institute reports that campuses instituting these regulations see a significant decrease in employee smoking.

Some hospitals are now taking smoking bans one step further: they refuse to hire smokers at all. In the February 2011 article by A. Sulzberger, “Hospitals Shift Smoking Bans to Smoker Ban,” The New York Times reports that administrators see “tobacco-free hiring” as a way to increase worker productivity, decrease healthcare costs, and encourage healthier living. Indeed, according to the CDC website, cigarette smoking is estimated to cost the United States $193 billion in lost productivity and healthcare costs, with every employee who smokes costing employers an additional $3,391 per year.

These “smoker-free” policies are starting to have a real effect on the marketplace, having already been implemented in hospitals in Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee, and Texas, with many other hospitals openly considering the measure. A 2010 Palm Beach Post article by Laura Green reports that the Cleveland Clinic—one of the champions of the new regulation—has already screened 15,000 workers, turning away several hundred applicants who tested positive for nicotine. It is also important to note that this number almost certainly underestimates the true impact of the ban, as it would be impossible to account for the prospective employees that may have been deterred from applying at all due to the new policy..

Yet as with smoke-free campus policies, the motivation for smoker-free policies extends beyond the employees to the patients themselves. In a 2011 Dallas Business Journal article by Bill Hethcock quotes Joe Woods, an administrator in the Humana health system, who said that, when hospitals institute tobacco-free hiring, “it’s a step that really sends a message that they’re going to establish a culture of wellness, and it’s something that they’re taking very seriously.”.

Despite their appeal, smoker-free policies have raised serious legal and ethical issues. In an interview with Southern California Public Radio in 2011, Dr. Paul Terpeluk, Director of Employee Health at the Cleveland Clinic, admits that nicotine is the only legal substance that disqualifies an applicant from working at the hospital and understands that the policy turns away applicants for behavior that occurs entirely outside working hours. While no federal law explicitly prohibits tobacco-free hiring, 29 states—with the strong backing of the American Civil Liberties Union—have passed laws prohibiting discrimination against smokers or those who use “lawful products,” according to a 2011 Southern California Public Radio interview with Lewis Maltby, President of the national Workrights Institute, and  Sulzberger’s 2011 New York Times article. But the other 21 states leave open the possibility of smoker bans like those in place at the Cleveland Clinic in Ohio or at the Baylor Health Care System in Texas.

Many observers also fear that smoker-free laws could set a troubling precedent for the regulation of private behavior. For instance, obesity is a leading cause of poor health in America, with CDC estimates showing that it costs the economy $147 billion annually, according to the CDC website. Will job applicants someday have to step on the scale before being hired by a hospital?

In navigating the uncertain terrain that the future holds for hospital hiring policies, administrators could borrow an idea from the legal analysis of discriminatory policies: the concept of narrow tailoring. This notion emphasizes the importance of ensuring that policies are “narrowly tailored” to the goals they seek to advance—of having an exacting relationship between means and ends. This principle could serve as a helpful guide in creating effective and fair hiring policies. If employers are troubled by increased health insurance costs, they could increase the health insurance premiums for smokers. If employers are concerned with patients seeing or smelling cigarette smoke when trying to quit, they could prohibit any kind of smoking during work hours and stipulate that every employee’s person and clothing must be smoke-free during the workday. If employers are worried about hypocrisy in offering healthcare advice, they could institute tobacco-free hiring for doctors and nurses who will be directly consulting patients.

Whether tobacco-free hiring will usher in a new era of employee regulation remains to be seen. These policies may ultimately be regarded either as legitimate attempts to cultivate a healthy and productive work environment or as undue intrusions into the private lives of employees. One thing is certain: in the ever-changing healthcare landscape, it will always be imperative for policymakers to remain cognizant of this tension between public health and personal liberty.