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Fairfax official targets smoking in the county workforce

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The first time Gerald W. Hyland of the Fairfax County Board of Supervisors tried to cut smokers from the county’s payroll, more than a decade ago, it didn’t exactly go over well. His suggestion that the county stop hiring smokers brought him nothing but angry criticism.

His latest idea — forcing county employees who smoke to take classes to help them quit — isn’t gaining much support, either. This is, after all, Virginia, a state built on tobacco and the Jeffersonian ideals of limited government. Few have accused the commonwealth of being a nanny state.

What’s next, some wonder — requiring obese workers to enroll in Weight Watchers?

But for Hyland (D-Mount Vernon), whose father smoked and died of lung cancer at age 50, all of that is beside the point.

“I think it’s time for us to get serious about this,” he said.

Smoking has been cast out from all manner of public life — restaurants and bars, offices and airports — banishing those who partake to the sidewalk. In Montgomery County, where smoking is prohibited near playgrounds and in the common areas of apartment buildings, a County Council member recently proposed banning smoking from all county property.

But Hyland’s idea represents a new front in the smoking wars: Instead of making the public domain smoke-free, some are pushing for it to be smoker-free.

In the workplace, tobacco users are often required to pay higher health insurance premiums, and in recent years, some employers have begun adopting policies against hiring smokers. Although the hiring restriction is most popular among hospitals and health-care organizations, it is becoming increasingly common in other industries, despite lawsuits, the objections of civil rights groups and smoker-protection laws.

In October, Delray Beach, Fla., adopted such a policy, saying that smokers were simply too expensive to maintain on the city payroll. The city’s decision relied in part on a 1995 Florida Supreme Court ruling that upheld a similar policy in North Miami.

Some workplaces require employees to sign statements confirming that they do not smoke; others use urine tests.

Although several anti-smoking and smokers’ rights groups said they were not aware of any employers requiring workers to take smoking-cessation classes, they said measures aimed at pushing out smokers are becoming increasingly popular in public and private workplaces.

“A lot of companies are moving in that direction for financial reasons,” said Dennis Alexander, with the American Lung Association. “It’s no secret that smokers cost employers more.”

In Fairfax, lighting up is prohibited at bus shelters and inside county buildings, and county employees are offered free, voluntary cessation classes. Hyland first floated the idea of making the classes mandatory at a board meeting last month. During a discussion about rising health-care costs, wellness programs and county health insurance, he suggested that the county investigate whether it has the legal authority to require the classes.

A county spokeswoman, Merni Fitzgerald, said the county’s attorneys are looking into that question. Other local government lawyers said the matter isn’t clear-cut. Although none was willing to say with any certainty that such a requirement could withstand a lawsuit, several said the county might have the authority to adopt the rule. The county also could ask the state’s General Assembly to specifically grant it the power to mandate cessation help.

Because smokers aren’t a protected class, requiring cessation courses wouldn’t violate federal anti-discrimination laws, said Christopher J. Kuczynski, a lawyer with the U.S. Equal Employment Opportunity Commission.

Tougher than any legal issues, though, may be political ones.

Randy Creller, chairman of the county’s Employees Advisory Council, dismissed the idea of mandatory classes as one that will never win enough backing.

“I just don’t think they can do that,” he said. “I don’t see it happening.”

Several members of the Board of Supervisors agreed.

Pat S. Herrity (R-Springfield) said that he wants the county to reduce smoking among its workforce but that he probably wouldn’t support a proposal to make cessation classes mandatory. He would rather see the county invest in incentives for not smoking and a more robust employee-wellness program.

“I like the carrot versus the stick,” he said.

Supervisor Jeff C. McKay (D-Lee) said forced classes are “a step further than I’m willing to go.” He, too, wants an employee-wellness program that includes reduced insurance premiums for those who take part.

“I think if you’re a smoker and you want to participate in a voluntary wellness program that translates into premium discounts, then you should be required to attend [cessation] classes,” McKay said.

Bruce Elliott, an official with the Society for Human Resource Management, a trade association, said he isn’t aware of any employers requiring cessation classes. He warned against them, saying they could create resentment among workers and ultimately reduce productivity.

A representative of the American Civil Liberties Union said the group would probably oppose forced cessation classes, as it does bans on hiring smokers.

Audrey Silk, founder of the New York-based Citizens Lobbying Against Smoker Harassment, called Hyland’s suggestion “Orwellian.”

“It would be government dictating how you live,” she said. “Smoking and tobacco aren’t illegal.”

Even anti-smoking advocates cautioned against required cessation courses.

“It’s not a good thing to force people to try to quit if they’re not ready,” said Alexander of the American Lung Association.

Ellen Vargyas, general counsel for the American Legacy Foundation, an anti-smoking group, said enacting such a policy could put the county on a slippery slope.

“Would overweight workers be required to go into Weight Watchers?” Vargyas asked.

She said incentivizing participation is a better way to go. “A person’s job shouldn’t hang in the balance, as this suggests,” she said. “Smoking isn’t just a bad habit. It’s a serious addiction.”

Hyland said he has never smoked, save for a few puffs from a pipe that an old girlfriend gave him, but he sympathizes with those who do. His parents smoked multiple packs a day, and he saw them struggle with their addiction and health problems.

“That’s one of the reasons I think this is so important,” he said.

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