Smokers at lawn-care company Scotts Miracle-Gro are nearing their last pack. In October, employees at the Marysville, Ohio, headquarters will be subject to an aggressive smoke-free policy that says employees who smoke, even when not at work, can lose their jobs.

After spending extensive funds on initiatives that encourage employees to lead healthier lifestyles—including a $5 million onsite fitness and medical facility—CEO Jim Hagedorn decided that keeping smokers on the payroll undermined that investment. "We're not making a personal judgment about people who smoke," says spokesman Jim King. "But we're not going to underwrite the risk associated with it."

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Many companies facing continued increases in health care costs may be thinking the same thing. The Centers for Disease Control estimates that smoking-related medical expenses cost the nation upwards of $75 billion annually between 1997 and 2001. Studies have also shown that smokers take more days off and are less productive than their nonsmoking colleagues. In response, some employers, like JPMorgan Chase and publisher Gannett Company, now charge smokers higher health insurance premiums, and many more have forbidden smoking on their premises.

Employers who consider following Scotts' lead should be aware that the legal ground for such provisions is uneven. Although smokers are not protected nationally under the 1990 Americans with Disabilities Act (ADA), many individual states, like New York and New Jersey, have statutes protecting them from discrimination. And because ADA prohibits employers from requiring medical examinations that are not directly job-related, it may prove illegal to enforce policies by mandating nicotine testing. Scotts is still working out its enforcement strategy.

Jonathan Segal, a Philadelphia–based employment lawyer, cautions that such policies, even when legal, can prove damaging to employee relations. Far more safe, he advises, is for companies to use the carrot approach, by offering voluntary smoking-cessation programs and rewarding all nonsmokers with a discount on health insurance.


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