Erin Thompson Curlett, Senior Content & Social Media Marketing Manager
Thanks to attorney Julie B. Ross, who recently gave an engaging webinar presentation titled How Far is too Far? Legal Issues & Best Practices for Worksite Nicotine Testing. If you missed the presentation, you still have a chance to watch a recording of the webinar on our website. Watch the webinar recording.
We received quite a few excellent questions during the webinar, but unfortunately we were unable to get to them all. Following the webinar, Yuki Yang, our worksite inventive design expert, answered a few questions about implementing a nicotine test at the worksite. Now we have asked presenter Julie Ross to speak to some of the legal implications of considering a worksite nicotine test.
Q: Our headquarters is in New York and we have sales reps all over the country. Do we still have to follow all of the state rules (regarding smokers' rights) or just those of New York?
Julie: Many states have statutes and case law governing smokers rights and some even have laws governing nicotine testing. Following only the applicable law in the state where the employer has its headquarters will be insufficient in most cases. Employers must know and follow the applicable laws in each of the states in which they employ workers.
Q: How likely do you think it is that nicotine tests will eventually be considered medical examinations by the ADA?
Julie: The EEOC, in its ADA Enforcement Guidance, sets out a number of factors to use do determine if a procedure or test is medical, including: Does the test seek information about an individuals health or physical impairment? Who gives the test? Who interprets the results? Is it invasive? For example, does it require the drawing of blood, urine, or breath? The EEOCs Guidance states that, in many cases, a combination of these factors is relevant in figuring out whether a procedure or test is a medical examination. But in some cases, according to the EEOC, one factor may be enough to determine that a procedure or test is medical. With that said, courts do not always follow the EEOCs lead and frequently make decisions that cause us to scratch our head in wonderment. So, while I personally think it is a safe bet that a saliva-based nicotine test performed by non-medical personnel requiring no interpretation by medical personnel is not a "medical examination" under the ADA, the courts will ultimately make that decision for us.
Q: How much should employers consider non-discrimination HIPPA rules?
Julie: Employers must be certain that their wellness program complies not only with the ADA, but with HIPAA and GINA as well. HIPAAs nondiscrimination rules generally prohibit discrimination in group health eligibility, premiums, etc., based on an individuals health status, but there are specific exceptions for wellness programs that meet certain requirements. So, for example, premium discounts to non-smokers are permissible if HIPAAs regulatory requirements are met.
Q: If a venipuncture blood draw was taken during an onsite biometric screening and screening for cotinine was included, would that have legal stipulations within the ADA?