Episode 114: Off Duty Conduct – Smoking

On this episode of What the Hell Just Happened? Paul Edwards sits down with senior solution center advisor Tiana Starke to discuss options for dealing with employees who smoke while off the clock. While their smoking may be happening outside of the office, the smell follows them back in, and that can be an awkward situation for a practice owner who wants to project an image of caring about oral health. What can you as a manager do about this, and what potential legal pitfalls do you need to keep in mind?


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 uh, going good actually. 

Tiana: Oh! That’s really good to hear.

Paul: Yeah except for… I dropped… I dropped 20 pounds of pre-cooked rice. 

Tiana: [Gasps] No!

Paul: Yeah you have to be asking yourself – Paul, why do you have 20 pounds of pre-cooked rice? 

Tiana: Yeah, that’s the other question [laughs] that’s a lot of rice.

Paul: Well, it’s a long story. The short- the short version of it is, as you know, I cook at the shelter I used to – for everybody who’s listening, for our one listener, I used to be a cook/chef in another life, many many years ago. 

Tiana: And he’s an amazing chef. Our employees have tried out some of Paul’s fares. 

Paul: So, I’m working on Thai fried – 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: For the ladies at the women’s shelter.

Tiana: Awe, that’s awesome.

Paul: And – and I picked it up this morning, and I dropped half of it… so.    

Tiana: What are you gonna do? 

Paul: I’ll figure it out.

Tiana: More rice? 

Paul: I’m gonna make more rice. 

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

Paul: This is the third time I’ve cooked this rice…so.

Tiana: [Groans] Come on!

Paul: I’m doing – 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 – no.

Tiana: [Laughs] Oh!

Paul: Just ask for it. In the – yeah! In the comments, just ask for it! 

Tiana: I think we can shift gears this is now gonna become a cooking podcast, yeah. 

Paul: Let’s do a cooking podcast.

Tiana: Share your recipes. 

Paul: I did. I found the secret, and I’m willing to share the little, you know, the stuff you have to buy to do it, if anybody cares. Okay… 

Tiana: Alright…

Paul: Let’s get into what the hell just…

Tiana: Our producers will figure out if we drop a link to the recipe. [Laughs]

Paul: [Laughs] Exactly.

Tiana: Okay. Yes, so… What the hell just happened…

Paul: Yeah, what the hell just happened in HR?

Tiana: Here’s a situation. This is one that we saw this one recently come up. One of our members- and pretty common situation… 

Paul: Mmhmm.

Tiana: Kind of want to just… pose it to you to get your input on this. 

Paul: Mmhmm.

Tiana: So, in dental practices particularly. 

Paul: Mmhmm.

Tiana: There are trying to present a certain image of oral health…

Paul: Of course.

Tiana: And… they find out that this new hire that they just brought onboard is a smoker. 

Paul: Okay.

Tiana: And they’re not crazy about this. 

Paul: Common problem, yep.

Tiana: Yeah. And they really wanna know, do they have to keep this person employed…

Paul: Mmhmm.

Tiana: …if they smoke? I mean… Is that an illegal reason for separation, or is there anything we can do about this? Because they don’t want this person smoking – they don’t want this person being seen out in the community smoking either.

Paul: So they’re even… okay I get it. So, theyre like, not only are they concerned about what happens at work, they’re saying if this person is seen smoking somepalce else, that reflects poorly on the practice. 

Tiana: Yep.

Paul: 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, and Tiana knows this, but for everybody that’s listening: different states have different rules about this. So in some states you can pretty much operate with impunity- and when I say operate with impunity you just make your decision and let that employee go. 

Tiana: That’s right. 

Paul: Not to be mistaken with at-will employment… You don’t have to give a reason or any of that stuff. I’m not gonna go down that hole. 

Tiana: Mmhmm.

Paul: But in this case, there’s no protection for them around this. Like there’s no protection for having dyed blue hair.

Tiana: Right, its not a protected class.

Paul: It’s not a protected class. But, if your, you know, employee is 65 and they dye their hair and it turns blue, you might have…

Tiana: Ah!

Paul: You may have some other things going on there.

Tiana: There’s another layer there.

Paul: Oh god, okay let’s not go there. 

Tiana: [Laughs]

Paul: Alright.

Tiana: We could do this all day.[Laughs]

Paul: We could do this all day. And then…! But…! [Laughs]

Tiana: [Laughs]

Paul: Okay, alright, 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 hiring decision 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. 

Tiana: Mmhmm.

Paul: So, no law anywhere says that you can do something like smoke cigarettes, and you can come in smelling like cigarettes. 

Tiana: Oh, here we go!

Paul: Yeah, so, yeah we’ve had this come up in a lot of different ways. I’ve had it come up in the Midwest, like 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 she – somehow that smell was coming with her. 

Tiana: Oh…

Paul: So, she smelled like horses, like livestock. So, I’ve seen many different variations of it. 

So, look – a smell is a smell is a smell, and a medical practice, dental or otherwise, has a right to regulate those smells. And they do it. Perfumes, you know all sorts of things…you guys-

Tiana: That’s a really good example! Perfumes too. It might be the opposite situation, but if you’ve got a patient that’s right up, you know, close to somebody giving them service, and they’ve got allergies, that kind of thing, it can trigger those. 

Paul: Yeah, you’re in somebody’s mouth. And we’ve all been there when someone’s, you know I’ll say it, reeked of smoke. I mean, you know, I had this. I’m just thinking about it because I said reeked of smoke. It was a campfire! Not campfire but 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 “hey you smell like the horses”. And they’re like “I didn’t know”. I mean… you know, you become – The employee becomes oblivious to the smell. We all do. 

Tiana: Mmhmm! Right! 

Paul: We all do, whatever the smells are around us. 

Tiana: That makes a lot of sense. 

Paul: So 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 off of 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. 

Paul: Mmhmm?

Tiana: Is there anything that an employer in that situation could consider before they terminate this employee?

Paul: Well… I think that, I would love to see – My mom is 85 years old. She had a stroke two years ago, and she’s still smoking. And 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. 

Tiana: Oh, yeah!

Paul: I have been covered in tobacco gum, what they call a tobacco gum from harvesting tobacco, from head to toe. 

Tiana: Oh my goodness.

Paul: I was, you know, I was in industries before where there was lots of smoking, and as a young person I did smoke.

Tiana: Yeah.

Paul: And I, you know, it was so difficult to stop. 

Tiana: Well it was really common back then too, widely accepted. 

Paul: It was very common.

Tiana: That’s something that’s shifting a lot nowadays. 

Paul: Oh well yeah it’s completely shifted. But I didn’t work at a dental office…I didnt…

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

Paul: No or working in a restaurant or a bar or whatever it is. You know or simply just being in any area where there’s not a conflict there.

Tiana: Mmhmm.

Paul: But coming back to this, this – your 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 know, 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 who smell like smoke, or who are smoking away…” 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, now how do you feel abut someone who’s trying?

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. 

Tiana: Yeah! That’s a really great approach.

Paul: It’s a human approach.

Tiana: Yeah! 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 too. And especially if they quit smoking, they make a positive lifestyle change that they were supported through. 

Paul: And you could be there as they 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 then change, and then not…

Tiana:    Yeah! That’s a really important point, and that’s exactly where our CEDR 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 Paul, I’ve heard from members before, there was one doctor who was like, “I found out that my office manager [laughs] I had for 40 years…

Paul: Smokes?

Tiana: …was a smoker!”, and he never knew. She would put a hair net on, she would put gloves on, and she would have like breath mints ready whenever she like came back inside. She didn’t smoke during the day either, it was just like before her shift and after. So he just ran into her at an event out on the street, and he was like, [laughs] “Oh my gosh! They’re smoking a cigarette”. [Laughs] 

Paul: Well then, you know, do you care? If you don’t know, do you care? 

Tiana: Exactly! Yeah.

Paul: 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 know what? You could make this offer, and she’ll look you dead in the eye and go, “yeah that’s not gonna work, I’ve tried it, I’m a smoker, I don’t care”. And now you know. And now you’ve made your best effort, and it’s easy to say, “Well, we’re gonna have to part ways with you.” But you know, just kind of – this is one of those things. It comes up a lot. 

Tiana:    Yeah. 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. 

Paul: Yep!

Tiana: To my knowledge, that’s only like one or two states that that applies to. 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. But that’s something to look into. 

Paul: Well I mean 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? 

Tiana: Oh, that’s a good analogy.

Paul: Where does this stop? So I’d like for people to get away from that. “It’s bad for our reputation” or things like this. There are certain circumstances – see the episode about “I hired a stripper and 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. [Laughs]

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

Paul: Yeah, 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.    

Tiana: Thanks!

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives.

Oct 4, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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