Episode 114: Off Duty Conduct – Smoking

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Tiana: Hey, Paul. 

Paul: Hey, Tiana.

Tiana: How’s it going today?

Paul: It’s good actually. Except for… I dropped 20 pounds of pre-cooked rice. You gotta be asking yourself, why do you have 20 pounds of pre-cooked rice? 

Tiana: Yeah, that’s a lot of rice.

Paul: Well, it’s a long story. The short version is, as you know, I cook at the shelter I used to be a chef in another life, many years ago. 

Tiana: And He’s an amazing chef. 

Paul: So, I’m working on Thai basil fried rice, and I’m doing it for the ladies tonight, and I need to cook the rice in advance, it’s just easier. 

Tiana: The ladies at the women’s shelter?

Paul: Yes. and I picked it up this morning, and I dropped half of it.

Tiana: What are you gonna do? More rice? 

Paul: I’m gonna make more rice. 

Tiana: He’s leaving after this podcast to make enough rice. 

Paul: This is the third time I’ve cooked this rice. I’m breaking the whole thing down. I’ve got it figured out, I’ve got the right ingredients and everything. And for those of you who want the recipe, just ask for it. 

Tiana: It’s gonna become a cooking podcast. Share your recipes. 

Paul: I found the secret, and I’m willing to share the little stuff you have to buy, if anybody cares. 

Tiana: Okay, our producers will figure out if we drop a link to the recipe. So, WTHJH. Here’s a situation. We saw this one recently come up. One of our members- pretty common situation. I just wanna pose it to you to get your input on this. So, in dental practices particularly. There are trying to present a certain image of dental health, and they find out that this new hire that they just brought onboard is a smoker. They’re not crazy about this. And they really wanna know, do they have to keep this person employed if they smoke? Is that an illegal reason for separation, or is there anything we can do about this? They don’t want this person being seen out in the community smoking either.

Paul: So, not only are they concerned about what happens at work, they’re saying if this person is seen smoking somewhere else, that reflects poorly on the practice. I think that second one is a little bit of a reach. I do understand where they’re coming from. First of all, if we’re gonna solve this problem, different states have different rules about this. In some states you can pretty much operate with impunity, just make your decision and let that employee go. Not to be mistaken with [inaudible] employment. You don’t have to give a reason or any of that stuff. I’m not gonna go down that hole. But in this case, there’s no protection for them around this. Like there’s no protection for having dyed blue hair. It’s not a protected class. But, if your employer is 65 and they dye their hair and it turns blue, you might have some other things going on there. Let’s not go there. 

So, we’d have to look at the different state laws to see if there’s anything there. If there’s protection there, then merely firing them or making a decision to not hire them based on their status as a tobacco smoker or not, if there’s a law there that could prevent it, you need to be careful about that. But there is some protection that is never there. So, no law anywhere says that you can do something like smoke cigarettes, and you can come in smelling like cigarettes. 

We’ve had this come up in a lot of different ways. I’ve had it come up in the Midwest, 15 years ago. It was a livestock issue. And a very valued member of the team, who had just come on, and she was wonderful, everything about her, but she fed her horses every morning, and somehow that smell was coming with her. So, she smelled like horses, like livestock. So, I’ve seen many different variations of it. 

So, a smell is a smell is a smell, and a medical practice has a right to regulate those smells. And they do it. Perfumes, all sorts of things…

Tiana: Perfumes too. It might be the opposite situation, but if you’ve got a patient that’s close to somebody giving them service, and they’ve got allergies, that can trigger those. 

Paul: Yeah, you’re in somebody’s mouth. And we’ve all been there when someone’s reeked of smoke. I’ve had this. They heated their home with a wood stove, and they would come in smelling like the smoke. And you know what? In that instance people didn’t have any trouble just saying, ‘hey, you smell like the wood smoke’, or ‘you smell like the horses’. I didn’t know. The employee becomes oblivious to the smell. We all do. 

In this instance, we check the state. If there wasn’t anything in the way, they could make that decision and let that employee go, based on all of those things. The off-duty behavior, they don’t want anybody seen smoking at work, they just don’t wanna be associated with someone who smokes. 

Tiana: So, that raises another question. Is there anything that an employee in that situation could consider before they terminate this employee?

Paul: Well… My mom is 85 years old. She had a stroke two years ago, and she’s still smoking. I really wish that somewhere along the way we could have stopped that. And I was raised in eastern North Carolina, where both my grandparents had tobacco farms. I have been covered in tobacco gum from head to toe. I was in industries before where there was lots of smoking, and as a young person I did smoke. It was so difficult to stop. 

Tiana: It was really common back then, widely accepted. That’s something that’s shifting a lot nowadays. 

Paul: Yeah. But I didn’t work at a dental office…

Tiana: It doesn’t pose a conflict of interest when you’re working in the music industry, or in a restaurant. 

Paul: Or a bar or whatever it is. But coming back to the question, the reason why I shared that with everybody is that I know how hard it is to get off of this drug, and this could be your opportunity, especially as a medical professional, to at least offer some support around it. Because sometimes it’s that extra bit of attention that we give to someone, just human to human, where we say, ‘you’re doing a good job here but we’ve got a really serious issue, and we made a choice not to work with people who smoke, or smell of smoke, and give them all your reasons. But we would support you in trying to quit. We know it’s not gonna be easy. Would you like to try to quit? I’d like to buy you the patches. I’d like to send you to the hypnosis place. I’d like to try to help you get through this. And I even know that you might have relapses. So, how do you feel?’

If they say, ‘yes, actually, I had such a hard time finding a good job, I love this job, the pay is good, this is what I wanna do. I love this week or two that I’ve been here.’ I love that approach. It’s a human approach.

Tiana: And when you think about it, putting the human back in human resources too, what does that do, when you extend this opportunity to an employee? It builds a lot of trust. And especially if they quit smoking, they make a positive lifestyle change that they were supported through. 

Paul: And you can relapse and go back and forth, but still, you can hold them accountable that they can’t smoke on campus, can’t smell like smoke. I’m just telling you, unless you’re gonna go out at lunch and smoke a cigarette, and then take a shwoer, and change, and…

Tiana: That’s a really important point, and that’s exactly where our Cedar handbook can benefit individuals, especially if you’re out there and you don’t have a handbook. Our policy surrounding smoking will clarify that this is a smoke-free environment, and you are not to smell like smoke while you are at work. So, you have to take every measure possible to be able to free yourself from that smell. And the funny thing i’ve heard from members before, there was one doctor who was like, ‘I found out that my office manager I had for 40 years was a smoker’, and he never knew. She would put a hair net and gloves on, and she would have breath mints ready. She didn’t smoke during the day either, it was just before her shift and after. So he just ran into her at an event out on the street, and he was like, ‘they’re smoking a cigarette’. 

Paul: But do you care? If you don’t know, do you care? Most of the time, if we don’t know, we care- so, I’d just caution us about judging people about what they do when they’re not at work, when it’s not illegal. That’s the thing. She’s not doing anything illegal. Maybe try to help. And you could make this offer, and she’ll look you dead in the eye and say, ‘that’s not gonna work, I’ve tried it, I’m a smoker, I don’t care’. And now you know. You’ve made your best effort, and it’s easy to say, we’re gonna have to part ways with you. This comes up a lot. 

Tiana: And I would add, definitely check in with an HR advisor that you trust, or an attorney, just to make sure that you are not in one of the rare states where smoking may actually be considered a protected consideration. To my knowledge, that’s only one or two states. And I think the other takeaway here is, it’s definitely easy to control what happens on premises. That’s what you do have control, and you can start there first. And ultimately, you might get to a place where it’s not a good cultural fit. That’s something to look into. 

Paul: It’s a slippery slope. Are you gonna be offended because your dress code is a certain way, and if you see somebody that you may consider not appropriately dressed for work away from work, are you going to enforce that on them too? Where does this stop? I’d like for people to get away from that. It’s bad for our reputation, for things like this. There are certain circumstances – see the episode about ‘I hired a stripper or a pornstar without realizing it’. There are certain circumstances where what someone is doing off-duty could reflect poorly on your business within the community. 

Tiana: Maybe that’s something that you wanna look into. 

Paul: But that’s for a different episode. 

Tiana: Well, thank you so much, Paul. This really cleared up some misconceptions here. It was really helpful for me to just talk this out. 

Paul: Yeah. Great question, Tiana.

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