By ROBERT WHITE
Journal staff writer
The Fairfax County Attorney's office has snuffed out a proposal to prohibit county employees from smoking off the job.
County Attorney David P. Bobzien, in a letter sent Monday to the Board of Supervisors, said the county does not have the legal authority to require its employees to be nonsmokers.
The board, at the request of Supervisor Gerald W. Hyland, D-Mount Vernon, voted unanimously last month to explore whether the county could hire only nonsmokers, force new employees to stop smoking or give preference to abstainers in the hiring process.
The sweeping proposal was quickly condemned by tobacco and civil liberties groups, and even some supervisors conceded it had little chance of becoming law.
A 1989 state law says no employee of a local government "shall be required, as a condition of employment, to smoke or use tobacco products on the job, or to abstain from smoking or using tobacco products outside the course of his employment," except for public safety personnel.
That law, along with another that says localities can only give hiring preferences to veterans of the armed forces, likely makes Hyland's proposal illegal, Bobzien said.
"The board could not require present or prospective employees to abstain from smoking outside of the workplace," he said, "and because Virginia law authorizes localities to adopt employment preferences only for veterans, I conclude that the board does not have the authority to impose a nonsmoker preference" for non-public safety employees.
Hyland, the board's vice chairman, made the proposal at the May 18 Board of Supervisors meeting, saying a work force of nonsmokers would cut health care costs and take fewer sick days.
"Shouldn't we as elected officials take a hard look at the impact of smoking and do all that we can to reduce or eliminate smoking-related costs and have a healthier work force?" Hyland said at the time. He could not be reached for comment yesterday.
Other board members reacted with little surprise to Bobzien's ruling.
"The county was very clear: We do not have the authority to do that," said Chairman Katherine K. Hanley, D-at large. "That probably settles that."
"I understand what Gerry was doing, but it was a little misguided," said Supervisor Michael R. Frey, R-Sully District. Frey voted to study Hyland's proposal even though he called it "intrusive."
Hyland's motion also asked the Northern Virginia congressional delegation to support legislation that would give local governments a share of any tobacco settlement and directed the the county's personnel office to determine the impact of smoking-related illnesses on Fairfax employees over the last five years. Those proposals were unaffected by Bobzien's ruling.