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Workplace restrictions have smokers fuming
By Stephen Dinan
THE WASHINGTON TIMES
 mokers lurk in the mid-afternoon shadows of Fairfax County, Va.'s government center buildings, smoking cigarettes down to the stubs while digesting the latest office gossip.
A news photographer approaches to take their picture.
The smokers shake their heads. It's true, the county attorney ruled last week that smokers cannot be kept off the public payroll -- as some supervisors want to do.
But that doesn't matter. The smokers don't want their picture taken. They don't want to be branded.
It's because the heat is on smokers again -- and not just in Fairfax County.
In Baltimore, anti-smoking groups, taking advantage of a loophole in a state law, have turned to local governments to try to increase taxes on cigars, chewing tobacco and snuff. Baltimore City Council member Norman Handy announced he will propose a city tobacco tax. A similar tax bill is planned in Montgomery County, Md.
In Florida, smokers can be barred from municipal jobs. In certain Florida cities, new workers must swear an oath that they don't smoke and don't intend to.
It was the sheer possibility -- a preliminary study -- of a Florida-type ordinance that put fear in the hearts of Fairfax government employees, even though such a thing can't be done in Virginia.
But the idea, first proposed by Gerald W. Hyland, the Board of Supervisors' vice chairman and Democratic member from Mount Vernon, won't die easily.
Supervisor Dana Kauffman, Lee District Democrat, told The Washington Times that if it turns out Virginia law does indeed prevent such a policy, they might try a different approach -- like charging smokers extra for their health insurance.
Legal analysts agree a hiring ban on smokers would be dead on arrival because it violates a Virginia law that forbids localities from refusing employment based on tobacco use.
But the mere fact that the county is talking about such issues is disturbing, say the American Civil Liberties Union and others.
"I don't know what those [supervisors] are smoking," said Lewis Maltby, director of the ACLU's national workplace rights office. "They can't do that. It's illegal --and for very good reason."
Critics of the move to bar smokers from government jobs say they wonder where it will stop. Will the county continue the way of Athens, Ga., and try to hire only those with low cholesterol levels? Will it follow the lead of some private employers and refuse to hire folks who like such adventurous recreational activities as riding all-terrain vehicles?
So far, however, it's just tobacco.
The Fairfax board voted unanimously May 18 to have the county attorney look into the legality of the issue, and to have the Office of Personnel see how much the county would save with the policy. The county has no idea how many employees currently smoke, and doesn't yet know what savings there might be.
Mr. Hyland first raised the issue five years ago and received a cool reception from board members, he said. But now things are different.
"During the last five years, there has been a remarkable metamorphosis of opinion on the part of federal, state and local government and our citizenry as to the major medical hazards of smoking as well as the awesome smoking-related health care costs resulting therefrom," Mr. Hyland said.
None of the Fairfax supervisors smokes, and neither do the county executive or the director of the county's Personnel Office.
But Mr. Hyland told the board that part of his reasoning stems from his father, a three-pack-a-day smoker who had lung cancer and died at age 50.
The roadblock in Virginia is a 1989 state law, amended in 1997, which explicitly forbids the state or its subsidiary political jurisdictions from dictating employees' private-time smoking habits.
But other locales around the country aren't prohibited from keeping smokers off the payroll. Several Florida cities have such a policy, among them North Miami, which initiated its policy in 1990.
New employees there are required to sign an affidavit saying they haven't used tobacco in the last 12 months and won't begin to do so.
The city estimated it would save $14 million over 20 years for a workforce of 500. That's from a savings of $4,600 per year for every position formerly filled by a smoker but now filled by a nonsmoker. Fairfax County, with a workforce of almost 7,500 nonpublic safety employees, conceivably could expect much higher savings.
Lee R. Feldman, North Miami's city manager, said he can't recall ever firing someone because he began smoking or lied on the affidavit, but he did recall one applicant who had a pack of cigarettes rolled in his shirt sleeve as he turned in his signed affidavit
"His application didn't go very far," Mr. Feldman recalled.
Mr. Maltby from the ACLU said he has tried to track down some of the numbers that show savings from not hiring smokers, and said they have all turned out to be bogus.
"Obviously smoking is not good for you, we all know that. I think even Philip Morris and R.J. Reynolds know that. But just because it isn't good for you doesn't mean you're going to cost your employer more," Mr. Maltby said.
But Jake Sullum, a senior editor at Reason magazine and author of "For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health," said there may be some real savings from prohibiting employees from being smokers.
Answers to questions about missed work days and productivity, however, are murkier, he added.
If the county's only goal is to decrease health care costs, it might be a good idea, he said. But if it's an attempt to change folks' behavior, he says it may be too intrusive.
North Miami never did a concluding study to see exactly how much it was saving. Officials there changed this year from self-insured to private insurance and said they got a good rate, though Mr. Feldman said the city's smoking policy is just one part of that.
The city has not gone the way of Athens and some private companies in regulating other behavior such as alcohol consumption.
Supervisor Michael Frey, Sully District Republican on the Fairfax board, is wary of such a policy and said proponents are going to face a conundrum: For years they've talked about how tobacco is addictive, but if that's so, then smokers have protections under disability legislation and such a ban could violate those laws.
All of this discussion about savings and insurance is lost on the folks who congregate on the steps outside government offices in Fairfax, however.
The final irony is that one of the county government buildings where smokers congregate is named after John F. "Jack" Herrity, former board chairman, who was a notorious chain-smoker for much of his life.
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