b'Smoking DiscriminationWho, What, Why . . . Who does it apply to: All employers who have employees orto exclude coverage (a questionnaire can be used to determine prospective employees that smoke. overall, but not individual premiums). Nor can employers charge a higher premium to employees with a higher risk or incidence What is the issue: According to recent statistics 18.5 percentof claims.oftheadultpopulationinTexassmokes.Smokingaffects productivityofthesmokerandcanaffectthehealthofallWhenitcomestowellnessplans,HIPAArequiresthat employees. A lot of publicity has come to ideas like chargingprograms with a reward component meet certain criteria. These higher healthcare premiums for smokers, requiring employeesrequirements include: (1) limitations on reward size; (2) purpose not smoke at all, and offering health programs to stop smoking.of plan to promote overall health; (3) eligibility to qualify once Employers want to know what options are legally available toa year; (4) rewards available to all employees; and (5) offer a them for regulation of smoking among employees.reasonable alternative for employees who cannot qualify under the primary program. When it comes to smoking in particular, What is the law: Smoking at work implicates a variety of laws, butalleffortsgearedatstoppingsmokingmustbevoluntary. most importantly the Americans with Disabilities Act (ADA) andEmployers cannot force smokers to participate in a program to the Health Insurance Portability and Accountability Act (HIPAA). stop smoking.SmokingandnicotineaddictionwerenotdisabilitiesunderAre smoke breaks required: Businesses are not required to offer theADAbeforetheamendmentsof2009.After2009,theemployees breaks of any kind during the workday. Employers question has been reopened, and there have not yet been anywho do allow employees to take short breaks during the day on determinative cases to provide a clear cut answer. Employerscompany premises can regulate where/whether the employees may still be required to accommodate employees who suffersmoke on the companys premises. Employees on a lunch break consequences of smoking. That said, the act of smoking stillwho are free to leave company premises are generally free to should not be protected. Employees claiming difficulty breathingengage in whatever conduct they choose during that time.or emphysema will have their condition improved if an employer restricts their ability to smoke in the workplace. An employee whoWhat about union businesses: Smoking policies are generally a claims a nicotine addiction can be reasonably accommodated inmandatory subject of bargaining under a collective bargaining a no-smoking workplace by using a nicotine patch or chewingarrangement. Be sure to consider this issue before implementing nicotine gum. In fact, the ADA may be used to prohibit smoking.any smoking-related policy.Employees with asthma or allergies to smoke may require aCommon Situations:smoke-free environment.Giving the third degree: Angies Ashtrays decides to become HIPAA comes into play in two areas: charging different pricingproactiveaboutthesmokingissuesinallphasesofher for healthcare and the use of wellness programs. Under therelationship with employees. Angie begins asking potential hires law, an employer cannot discriminate against or charge certainwhether they smoke or are addicted to nicotine and starts a pre-employees more for health coverage due to health factorshire health screening to find out if applicants are lying about which include smoking and nicotine addiction. Employers andsmoking.Hasthecompanysteppedonanylaws? Yesand health plans cannot require an individual to pass a physicalmaybe. examination for eligibility for coverage or use a questionnaire 45'