Editor’s note: After the recent article by Janice Janssen on the need to establish a vaping policy in dental practices, my friend Tim Twigg of Bent Ericksen & Associates reached out to me asking if he could provide a follow-up article with additional information. Tim and his company are renowned throughout the industry for their guidance on HR policies and practices, so I jumped at the chance. Below are his thoughts …
Tim Twigg.
This issue highlights the importance of ensuring your policies are kept up to date with the changing times. If you're not in the habit of regularly updating your policies to cover all the bases, you're leaving yourself exposed to liability and neglecting an important part of being an employer and business manager. We’d like to provide a few additional caveats that dentists should be aware of.
First, policies must be tailored around controlling behavior while at work. This can include where on the premises employees may or may not smoke/vape, when they can smoke/vape (e.g., breaks, lunch), and ensuring no odor (e.g., breath, clothes) while working. While employers have control over these activities while the employee is on the employer's premises or on the employer's work time, it does not extend to nonwork locations or nonwork time.
Employees may generally engage in these activities legally when they are off-site and off-duty. There are several states, such as California, Colorado, New York, and North Dakota, that have specific laws banning employers from taking adverse action (e.g., termination, demotion, write-ups, suspension, pay cuts, etc.) against employees for any lawful off-duty conduct, which would include the right to smoke/vape if they're 21 years old or older.
Second, dental industry employers will often want to have a policy that bans employing anyone who smokes/vapes. However, this desire could run afoul of employment laws. There are roughly 29 states (and the District of Columbia) that prevent discrimination based on legal conduct. Of those, 18 states have laws that apply specifically to tobacco use, eight have laws that apply to the use of any legal product, and the remaining are part of the ones listed in the previous paragraph. As a result, this particular policy can create lawsuits and claims against an employer and is not recommended.
Third, even if you're not in one of those listed states, smoking/vaping should not be part of the hiring decision. Not having a specific law in place for your state doesn't mean you can never be held accountable. You could be the guinea pig for one to be enacted after a lawsuit.
In this day and age, you could also gain a reputation on social media from a disgruntled individual, which could affect your practice in many ways. When hiring, it's best to stick to the real job-related aspects of someone's ability to perform the job.
