A recent article in the Seattle Times discussed how employers are testing new applicants for nicotine use. The ban is a continuation of the ongoing attempts that some employers have to prohibit smoking or smokeless tobacco use at any time, including off duty time. Health care and insurance companies are stepping up efforts to have current employees quit.
Roughly 30 states have some form of legislation protecting lawful off duty conduct, although there is no uniform coverage. Michigan does not have a law protecting lawful off duty conduct although there have been attempts in light of one employer's ban on smoking and termination of employees who refuse to quit.
As employers and employees struggle with rising health costs, similar efforts in other areas are likely to be explored. Can an employer discourage fast food eating? No bacon double cheeseburgers? What about alcohol? What will be the event that triggers serious discussion of protecting lawful off duty conduct in Michigan? If bad facts make bad law, will a sympathetic employee who is fired trigger more serious discussion in Michigan? There is no clear answer, but this is an area for employers to watch.