Lighten Up: Should Massachusetts Implement a Smoking Surcharge for State Employees?

Article excerpt

"To take further steps in preserving and improving the health of all of our employees, Anna Jaques has recently implemented a non-smoking hiring policy requiring all individuals who have been offered a job at Anna Jaques Hospital ... to take a nicotine test during their pre-hire screening process. This non-smoking hiring policy is an addition to existing pre-hiring screening measures. Administered by the hospital's Occupational Health Services, the urine-based nicotine test detects the presence of all forms of nicotine.

... Offers of positions to prospective employees who test positive for nicotine or drugs will be rescinded. Those individuals testing positive for drugs or nicotine will be eligible to re-apply for positions at the hospital [six] months after the date of the positive report." (1)

I. Introduction

On November 18, 2010, Anna Jaques Hospital in Newburyport, Massachusetts revealed its new hiring policy. (2) Under the policy, the hospital will not hire any prospective employees who test positive for nicotine. (3) Anna Jaques Hospital's policy is part of a national trend among private employers that have instituted tobacco-free employment policies and tobacco surcharges on health insurance. (4) Many employers have gone even further, instituting policies that target not only potential employees, but also current employees, who must attempt to quit using tobacco or face termination. (5)

Simply stated, the reasoning behind these tobacco-free policies is the employer's bottom line. (6) With healthcare costs spiraling in Massachusetts and throughout the United States, many employers are looking for ways to reduce healthcare-related expenses. (7) This trend is not limited to private employers either. (8) Although no state has yet implemented a tobacco-free employment policy, a growing number of states have established smoking surcharges for public employees covered under state healthcare benefit plans. (9) This Note will explore whether Massachusetts should join this trend and implement a tobacco free employment policy or a smoking surcharge in order save taxpayer money. (10)

This Note will begin with an in-depth discussion of the at-will employment doctrine by tracing the history of its development. (11) It will then examine the current status of the doctrine throughout the United States by detailing both the common-law and statutory limitations to at-will employment. (12) Additionally, it will explore the emergence of so called "lifestyle discrimination" statutes and the status of lifestyle-discrimination law in Massachusetts. (13)

Next, this Note will discuss rising healthcare costs throughout the United States and Massachusetts. (14) It will examine the cost of healthcare for Massachusetts as the commonwealth's largest employer. (15) It will also discuss the healthcare-related costs attributed to smoking and will look at the recent trend among states of integrating smoking surcharges into state healthcare benefit plans. (16)

Finally, this Note will analyze two potential options for Massachusetts to reduce its employee healthcare costs within the context of Massachusetts employment law, while also addressing slippery-slope concerns raised by opponents of these options. (17) First, it will consider whether Massachusetts should implement a smoke-free employment policy. (18) Second, it will explore the potential benefits of imposing a smoking surcharge on Massachusetts state employees. (19)

II. History

A. At-Will Employment

Massachusetts common law governing employment contracts defines an at-will employee as an employee who is not employed for a specified period of time or for the purpose of rendering any particular service. (20) At-will employment in Massachusetts can be terminated by the employee at any time for any reason, or for no reason at all. (21) Similarly, absent a contractual provision to the contrary, an employer can terminate at-will employment without notice for virtually any reason, or for no reason. …