Item C3BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 1, 2014 Division: Employee Services
Bulk Item: Yes X No Department: Employee Benefits/Human Resources
Staff Contact Person: Teresa Aggiar X4458
AGENDA ITEM WORDING: Approval to implement a non -tobacco use policy for all new BOCC
hires on or after January 1, 2015.
A surcharge for newly hired County employees, dependents, new retirees, newly elected officials
(including County Commissioners and Constitutional Officers), newly hired Constitutional office
employees and their dependents enrolled into the Medical and Prescription Health Plan who are
tobacco users.
ITEM BACKGROUND: At the October 16,2013 BOCC meeting, staff was directed to bring back
for consideration a mandatory no smoking policy. Much research was -done -and a policy is being
brought before the BOCC for approval to:
1. Not hire BOCC applicants who attest to using or used tobacco products five or more times in
the previous three months; and
2. BOCC & Constitutional Officer employees, dependents and retirees before being enrolled in
the Health Plan, must attest to not using or have used tobacco products five or more times in the
previous three months or be assessed a surcharge.
It is being recommended to put the plan in place January 1, 2015. All newly hired BOCC employees
and newly covered employees (BOCC & Constitutional Officer) of the Health Plan will be subject to
testing in order to verify non-use.
PREVIOUS REVELANT BOCC ACTION: None
CONTRACT/AGREEMENT CHANGES: Change in Summary Plan Document, Resolution to
revise the Personnel Policies and Procedures in accordance with County Code and Physician contracts
will need to be revised to include nicotine testing will need to be brought back to the BOCC for
approval.
STAFF RECOMMENDATIONS: Approval to not hire tobacco users and charge $100 surcharge to
employees, dependents, retirees, elected officials, their employees and dependents enrolled into the
Medical and Prescription Health Plan who are tobacco users and an additional $50 penalty if failing to
certify correctly.
I I I � 1 11 1 1 "I'll I i I I "I'll 1 11, 1�1'1 1 94 bi
COST TO COUNTY: N/A SOURCE OF FUNDS
Surcharge for tobacco users
REVENUE PRODUCING: Yes X • AMOUNT PER MONTH Year
APPROVED BY: County Atty_ OMB/Purchasing _ Risk Management
111 f,*103.3 V I
Revised 2/27/01
,91 i nM* 5 1 M WV WIT =0 s i
TO: Christine Hurley, Interim Deputy County Administrator
Teresa Aguiar, Division Director, Employee Services
FROM: Cynthia L. Hall, Assistant County Attorney
DATE: April 1, 2014
W .7mrsTung memors
Following is a summary of the legal issues regarding a proposal to adopt a no smoking or
no tobacco policy. You have stated that the policy would apply prospectively to persons hired
after the date on which the policy was adopted by the BOCC.
Monroe County as an employer: In 1995, the Florida Supreme Court held that
governments can ask prospective employees whether they are tobacco users or not, and can
refuse to hire tobacco users. City off. Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995). Thus, it is
very clear that as an employer, the County can ask prospective employees about tobacco use and
refuse to hire someone who uses tobacco. There have been no cases since then deciding whether
the County as an employer can or cannot continue to test those same employees and discipline or
terminate those who take up tobacco use after hire.
In 2000, a federal district court in Florida held that pre -employment drug testing of all
applicants violates the Fourth Amendment. Monroe County drug tests only safety -sensitive and
special risk applicants at the pre -employment stage.
Monroe County as administrator of its own health plan: Monroe County is not only
an employer, but also administrator of its own health plan. The County can include provisions in
the plan that impose additional premiums on nicotine users (or provides a discount to non -
nicotine users), provided the policy is enacted as part of a wellness program that offers smoking
cessation programs and provided the plan participant is given at least one opportunity every year
to avoid the surcharge. If the objective is to reduce health costs, adopting a policy through the
plan reaches approximately four times the number of persons as a policy for BOCC employees
only, because the policy applies to the employees of constitutional officers, spouses, and
dependents, and eventually retirees. The following chart shows claims in calendar year 2013 by
category, and only includes medical costs, not pharmacy:
Category # of participants Total claims past 12 mo. Avg. claim
Employees only 1278 $4,18'709, 5241AX) $3,818.09
Retirees 382 S2,.Y5-4,6 It171COO $6,687.48
Employee spouses
272
vx Z
$3,556.04
Employee children
506
Hj
$1,091.79
Retiree spouses
98
$2,830.73
Retiree children
35
pAS-91-1 U� 010%.
$4,821.91
Surviving spouses
16
%% or,i rip.
$2,803.19
COBRA
3
x xW.
W%r
$10,590.67
Total
2590
$9,476,630.00
$3,658.93
The BOCC also has the option of terminating the plan participant from coverage.
Self -certification v. testing: The County can (a) rely on self -certifications, (b) use drug
tests to detect the presence of nicotine (or one of its metabolic byproducts), or (c) both. Self -
certification has the advantage of not requiring a drug test, and therefore, not subjecting the
policy to Fourth Amendment (search and seizure) scrutiny. If a drug test is used (a test for
nicotine is a drug test), then the policy is evaluated under the Fourth Amendment: a policy will
be upheld if the court finds a "special need," the government's need outweighs the individual's
privacy interests, the least intrusive type of test is used, and the individual is given the most
amount of privacy in giving a sample. In 2013, the State of Florida had two "drug test" policies
declared to be unconstitutional. Neither involved a drug test for smoking. One involved drug
tests for all State employees; the other involved drug tests as a condition for receiving welfare
benefits. The "welfare" case is still on appeal. The takeaway of the rulings (by the U.S.
Eleventh Circuit Court of Appeals in both cases) is that the mere fact that the person is a public
employee is not enough of a "special need" to justify a drug test. (The court also held that
applying for the job did not constitute a waiver of the person's constitutional rights.) If the court
finds a "special need", the form — and specifically, the degree of invasiveness of the test (blood
vs. breath vs. urine) -- is taken into consideration, with more intrusive tests (blood and urine)
scrutinized more harshly than breath, as well as the government's need for the test and the degree
of privacy given to the employee in giving the sample.
Special Risk Employees: Although no Florida courts have addressed the issue, post -hire
tobacco use testing is more likely to be upheld in the case of law enforcement and firefighters
than any other group in light of Florida Statutes section 112.18. This section creates a rebuttable
presumption, for this "special risk" group only, that heart disease and hypertension discovered
during employment arose as a result of the employment, if a pre -employment physical was
conducted and it showed no signs of heart disease or hypertension. Post -employment physicals
would show whether the employee began smoking after hire.
In March 2011, the Monroe County Sheriff issued General Order Chapter 9-D, stating
that effective March 14, 2011 the Sheriff s Office would no longer hire any person who is a
nicotine -tobacco user. The G.O. defines this term to include cigarette and cigar smokers,
chewable tobacco, snuff, smoking cessation products, and any other nicotine product. The
policy states that members hired after that date will be subject to random testing or when
reasonable suspicion arises, and that members who continue to use nicotine/tobacco products are
subject to discipline, up to and including termination. It is unclear whether any employees have
actually been tested or terminated.
2
HIPAA ("Health Insurance Portability and Accountability Act")
No -smoking policies that are part of a group health plan are subject to HIPAA. (No -
smoking policies adopted by an employer and applicable only to its employees are not.)
HIPAA nondiscrimination rules prohibit group health plans from charging similarly
situated individuals different premiums or imposing different copays or deductibles based on a
"health factor." HIPAA does allow wellness programs to discriminate in benefits and/or in
premiums based on health factors. HIPAA divides wellness programs into two categories:
'9 Wellness programs that do not require an individual to meet a certain standard
related to a health factor ("participatory wellness programs") are allowed. Examples include a
fitness center reimbursement program without regard to whether the person loses weight and a
program that reimburses employees for the cost of smoking cessation aids or for attending
smoking cessation classes without regard to whether the individual is successful.
0 Wellness programs that require an individual to achieve a certain standard related
to a health factor (outcome -based wellness programs) (e.g., a wellness program that rewards a
person for being a non-smoker, or penalizes a person for being a tobacco user) are only
allowable if they meet 5 criteria:
0 the reward for the program (or surcharge) is less than 20% of the premium
cost (50% if the wellness program consists of a no -smoking plan);
0 the program must be "reasonably designed to promote health or prevent
disease";
0 individuals must have an opportunity to qualify for the reward every year;
0 the reward must be available to everyone and must offer a "reasonable
alternative standard" to people with a health condition that would make it difficult to
participate; and
0 the plan must describe the reasonable alternative standard (or offer a
waiver).
The "premium" is the total cost for employee -only coverage — in our case, $790.
The policy most likely to pass legal muster will have the following attributes:
• It will apply to employees hired after the date of the policy.
• It will require the employee — or plan participant — to certify whether he or she is
or is not a tobacco user, and use a blood, serum, or urine test only if there is "reasonable
suspicion."
0 It will be part of a wellness program, which offers (among other things) smoking
cessation programs and other smoking aids (e.g., nicotine patches);
0 If adopted in the context of the health plan and applied to plan participants, the
policy can impose a premium surcharge of up to 50% of an employee premium, if the wellness
program consists of a tobacco prevention program (30% if the wellness program includes other
things like weight loss, cholesterol, blood sugar).
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TYPE OF NICO INE
TOBACCO TEST
Who will determine
VENDOR PREFORMED PRICE
OUTCOME DETERMINATIONS outcome
Dr. Burton !Blood and Urine Testing $75.00 and up
Nicotene and Tobacco test Per Dr. Burton, will determine
depending on the
cannot differentiate between whether the
type of test, and what patches, snuff, or electronic applicant/employee is a
s is legal according to
cigarettes. If the person being smoker. However, there is no
? the Florida Statutes
tested Is around anyone that legislature on Tobacco
I
smokes (Spouse, Child etc.) the Smoking Cut-off
test will come back positive.
However, 2nd hand smoke level
would be low
I
Dr. Samess Urine Testing $75.00
Levels can not be determined, Dr. Samess office stated the
also you can't tell the contact laboratory company they use
;(cigarettes, electronic cigarettes isaid there Is no way to
Etc.) If your around someone I determine the levels of a
;that smokes, the test will come smoker.
;back positive but the level would
be low. Anything with Nicotine
i
;will show up in the Blood Stream
_ _.._ .
a Not set up at tFiis time for
Nicotene and Tobacco
Dr. lawyer Testing. ? N/A
N/A N/A
Urgent Care Urine Testing $65.00
Continine is a metabolite of Specimen collection will be
nicotine and provides a better performed using the same
screening for tobacco use than procedure and chain of custody
I
nicotine because it persists in the form as a regular drug screen
body longer. The half life for and office will determine
cotinine is approximately 16 outcome.
hours and is typically detectable
;for several days after the use of s
;tobacco. Cotinine assays also
;detect exposure to second hand I
;smoke though measurable levels
;will be significantly less. Some
'smoking cessation program
products contain nicotine which
will result in a positive cotinine
presence. These can include
nicotine patches, nicotine gum
and other nicotine products.
Therefore, the presence of
Cotinine is not a conclusive
I
indication of tobacco use
i
----------
Levers above 17 wouidconfirm
that the person is a smoker,
second hand smoker level will be Office will determine the
Truman Medical Urine Testing $40
'below 17. ;outcome.