Soldiers fighting for right to smoke?

It's nice to hear Americans talk about privacy and fighting for their rights. But sometimes I have to say: Do you know what you're talking about?

In Okemos, Mich., a 71-year-old health nut named Howard Weyers runs a health-care benefits company called Weyco. Weyers thinks his employees should be healthy, too, so years ago, he hired an in-house private trainer. Any employee who works with her and then meets certain exercise goals earns a $110 bonus per month.

So far, so good. But then, in November 2003, Weyers made an announcement that shocked his staff: "I'm introducing a smoking policy," he said.

No smoking at work. No smoking at home. No nicotine patch or nicotine gum. The company would do random tests and fire anyone with nicotine in his system.

"I yelled out," said Anita Epolito, "'You can't do that to me, it's against the law.'"

That's not true. In Michigan and 19 other states, employers have the legal right to fire anyone, as long as they don't violate discrimination laws (for age, gender, race, religion, disabilities, etc.).

Weyers gave his employees 15 months to quit smoking, and he offered assistance to help.

Today, he calls the policy a success. Twenty Weyco employees who smoked, stopped. Some of their spouses even quit.

"I'm just thrown out because this person decided, one day, this is what he wanted to do," said Epolito.

Virg Bernero, a Michigan state senator, wants to make such firings illegal. He helped publicize the fired Weyco workers' complaint -- in the process publicizing himself; he's expected to run for mayor of Lansing this year -- and now he's introduced a bill to prohibit employers from firing anyone for anything legal they do at home.

"What's it going to be tomorrow? That you['ve] got to lose a certain number of pounds . . . in order to keep your job?" Just as the law restricts discrimination on the basis of race or sex, he said, "we'll have an amendment for legal activities, for privacy outside the workplace. Because this goes too far."

Bernero's thinking is muddled. I think whether you smoke, get fat or go skydiving should be your choice. I say "Give Me a Break" to busybody politicians in New York and California who've banned smoking in every bar and restaurant. But there's a big difference between government banning things . . . and Howard Weyers doing it. We have only one government. When government bans something, it bans it for everybody in its jurisdiction. That's why the Bill of Rights limits government power. But Weyco is just one company. Its employees have other choices. There are other jobs available in Michigan.

Cara Stiffler has already found a "better" job but still told me it should have been illegal for Weyers to fire her. "I want my children to see that I stood up for my rights as an American. That's what . . . the men are over fighting in Iraq for, is my freedom."

Give Me a Break. Freedom includes the right to quit your job, but freedom also includes the right not to employ someone you don't want to employ. No one forced Stiffler and Epolito to work for Weyco. But now, they want to force Howard Weyers to employ smokers. He built the company. He owns the company. What about his freedom?

I asked Epolito if she "owned her job." No, she said, but "there's a relationship there."

There was a relationship, that's true. To put it simply, the relationship was that Weyers thought employing Epolito was a good thing and Epolito thought working for Weyco was a good thing. Weyers doesn't own Epolito; she's entitled to pursue her happiness, not his, and if that means smoking, that's her right. But Epolito doesn't own Weyers; he's entitled to live by his values, not hers, and if that means not employing smokers, that's his right. Government smoking bans take away our freedom. But all Weyers did was exercise his.

John Stossel is co-anchor of ABC News' "20/20" and the author of "Give Me a Break," just released in paperback.

I don't think one would test positive for primary smoking by eating plants from the nightshade family. There's a huge difference between measurements in primary smokers and non-smokers exposed to environmental tobacco smoke (ETS). Most of the research and analysis I did was to examine anti-smokers claims that non-smokers are regularly exposed to significant amounts of ETS. The fact is that non-smokers are not exposed to an awful lot of tobacco smoke in many places these days. The government estimated through the National Health and Nutrition Examination Survey (NHANES) that on average, non-smokers were exposed to approximately 75% less tobacco smoke in 1999-2000 than they were back in 1990. Those measurements are so low that diets rich in nightshades is much more likely to give false positives.

Gabz, you're right that they don't test for nicotine itself because it has such a short half-life. They test for the cotinine, which is a product of nicotine metabolization.

>>>Gabz, you're right that they don't test for nicotine itself because it has such a short half-life. They test for the cotinine, which is a product of nicotine metabolization.

Hi Lockjaw,

I have my husband's New England Journal of Medicine here. It says:

"The presence of nicotine and its metabolite cotinine in the body fluids of nonsmokers is usually taken as evidence of exposure to environmental tobacco smoke. Recently, the Centers for Disease Control and Prevention studied 800 people, both smokers and nonsmokers, all of whom tested positive for urinary cotinine" (nicotine oxide) "There is considerable evidence that nicotine is present in certain human foods, especially plants from the family Solanaceae (such as potatoes, tomatoes, and eggplant). Castro and Monji, Sheen, and Davis et al have reported on the nicotine content of foods and drinks."

So, yes, the nicotine is absorbed from the fruits of the nightshade plants.

Just a few random thoughts on this.

This has been going on for centuries. I think Henry Ford was an avowed anti-smoker and didn't allow his employees to smoke if he could help it. I think the same was true for Edison.

Weyers' policy to not employ smokers is surely acceptable as a private company employer, but I'm not so sure the way it was implemented was entirely legal or ethical. This is not simply a matter of smoking itself, but his insistance these employees submit to a test. I'm not sure that even illegal drug testing has been declared legal for all jobs, at least not in all places. It may be in some places, but mostly those type of policies are enacted for situations in which there are safety considerations for other employees and customers, such as airline pilots. Heck, good ol medical profession is a notorious trade for producing drug addicts, but prescription drug addicted physicians and surgeons rarely get more than a slap on the wrist even when identified as operating a scapel under the influence. These women working for Weyco were paper pushers. Certainly no ominous safety considerations there. From what I understood of the situation, old Weyers didn't even know these women were smokers, and one worked for him for over fifteen years. She had been holding up her portion of the employment "contract" or agreement, until ol Howard decided to change the rules.

This will undoubtedly open the doors to a gamut of employer intrusions into employees' personal lives until legislators draw the line. Where do you think the line will be drawn? Could you imagine an employer requiring all employees to submit to a DNA test to look for genetic disposition to see if he'd like to employ them? And then, since he framed his whole argument around medical benefit costs, what if the employer inquired as to family members habits under the guise of "saving costs"?

His only justification for implementing this policy was that the insurance companies charged him higher rates for employer covered healthcare premiums. He didn't necessarily have to fire them, but could have made them make up the difference in insurance premium costs or procure their own insurance. Heck, workers with children normally incur far higher annual medical costs than childless smokers so I don't understand why health coverage wouldn't be higher for them. And then there's the issue that smokers would consume less pension benefits due to estimated shorter lifespans. I'd love to see Kip Viscusi's figures factored in to see how much having smokers in his employ might "save" him money.

But most importantly, under implied contract rules, the employees were fulfilling their part of the employment contract. They really weren't fired "for cause", but for refusing to submit to an obtrusive test. When conditions of employment change such as this tenured or vested employees are generally grandfathered in. It's true that no one "owns" their job, but employment is a contract and both parties are expected to fulfill their portion of the agreement. However, it is better off they're gone, for he could have made their employment miserable by scrutinizing their work habits daily to look for some other cause to fire them.

Anyway, my beef isn't with goofballs like Weyers and Weyco. I'm more concerned about government agencies following this same policy. There a sheriff in Arizona, several State Attorneys' Offices in Florida, the city of Miami, among others who are getting on this only non-smoking employees allowed ban-wagon. A police dept in Massachussetts fired a cop simply because someone saw him light up in a bar while off-duty. I don't even think he was a full-time daily smoker, but just happened to feel like having a few while at the bar. There are many more casual smokers these days, who don't smoke daily, but will have a cigarette or two while relaxing with a drink. Heck, smokers also pay their fair share of taxes and then some, so no government agency has the right to restrict employment. Even those police and fire departments who claim that smoking employees can't perform under the rigors of the job shouldn't be able to make arbitrary and capricious judgements. Some smokers are more physically fit than couch potatoes who don't smoke. People are employable as long as they can continue to meet the physical requirements under annual testing criteria, whether they smoke or not.

But as far as the private employers rights are concerned, Stossel is right. But in being right, the anti-smokers who support this just shot themselves in the foot on smoking bans implemented "for the employees' health". They are contending that if it's ok to fire smokers, then no employees should have any right to employment. Someone doesn't smoke and doesn't like to be exposed to it in the workplace, then too bad. Tell em if they don't like it to go work for Weyco.

Howdy, Calpernia! Pleased to meet you.

Yes, you're right. Nicotine can be and is absorbed from fruits and vegetables in the nightshade family. It's even found in certain tea leaves.

However, most bodies do metabolize nicotine rather quickly, though at various rates. So the serum blood levels of nicotine decrease rapidly after being consumed. So testing for nicotine may show trace amounts but it really isn't a good quantitative indicator of how recent and what level of exposure someone was subjected to. That's why they generally measure cotinine in both blood and urine samples. The metabolite stays in the body longer, until excreted as a waste product. Funny thing about cotinine though is that all of us metabolize nicotine at different rates. Researchers assume that's why some people are more predisposed to become tobacco users than others.

Did you know they even found traces of nicotine in thousand year old Egyptian mummies? That has researchers perplexed because there were no known nightshade varieties in ancient Egypt and tobacco is a new world plant. It's not just from exposure to tobacco smoke from smoking crypt robbers and archeologists. The nicotine was fully embedded in hair and nail samples. Some surmise there were ancient overseas trade routes between the continents.

Again though, there are huge differences in levels of nicotine and cotinine found in the blood and urine samples between active smokers and non-smokers. The biggest risk of misclassification for those who regularly consume large amounts nicotine containing plants and beverages is for non-smokers where researchers may assume they are actually exposed to more environmental tobacco smoke when they may not be at all.

So anyway, I'm interested in seeing how this plays out. I can imagine employers start asking for a strand of hair when giving interviews so they can see if you smoked a cigarette or have been socializing with any heavy pot smoking friends for the past so many months... You think women with longer hair would have more of a problem? ;) Oh well, who knows where this will go?

No sweat, Gabz. It was fun rummaging through my files to see how much I forgot I had since I hadn't engaged anyone on those issues about cotinine measurements in quite some time. Here's an interesting quote I got concerning genetics and nicotine metabolization from a paper entitled, "Pharmacogenomics, the Human Genome Project and the Practice of Medicine," written a few years ago by Ian J. Mehr, PhD, MBA.

"Possibly one of the most intriguing correlations in the CYP450 family is between polymorphisms in the 2A6 gene and smoking. The 2A6 gene is responsible for the oxidation of nicotine and plays a major role in nicotine metabolism, which leads to the speculation that there could be a genetic role in nicotine dependence. Support for this hypothesis was found in a study that demonstrated individuals with defective 2A6 alleles were underrepresented in a group of addicted smokers. Furthermore, smokers with defective 2A6 alleles smoked significantly fewer cigarettes."

Remember that from our arguments with Ginny on Yahoo? That's when Spinner told Ginny, the born again anti-smoking former smoker, the reason why she couldn't stand smoking anymore after smoking for ten years was because she had defective genes and thus couldn't metabolize nicotine efficiently. Whatta hoot to hear Ginny holler. Ahhh, memories...

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