In the days of yore, "More Doctors Smoke Camels than Any Other Cigarette" was cutting-edge advertising copy. But that pitch has aged worse than those doctors' lungs. Now, at U.C. San Francisco, no doctor is going to smoke Camels, or anything else, during shifts — even on her own time, and even on his own property.
UCSF this month adopted its long-anticipated "100-Percent Tobacco Free at Work" policy. There won't be any smoking areas or ashtrays anymore; no one can light up or chew tobacco on campus property. That's par for the course. But UCSF's prohibition goes further — indefinitely further: "This policy covers all employees or students on all UCSF owned or leased property as well as any off campus locations where work time or breaks may occur" (emphasis ours). Per this language, all workers or students would be proscribed from using tobacco, even on breaks taken on land not controlled by UCSF. In fact, it would prevent someone from smoking during lunch while working from his own home or driving in her own car.
When an employer dictates what an employee can do on his or her breaks — especially when those breaks are taken remotely — they cease to be breaks. "And if they're not giving you breaks, they may be violating wage and hour laws," says Jean Hyams, an Oakland attorney specializing in employee privacy. More problematically, she continues, California's Labor Code specifically prohibits punishing employees for "lawful conduct occurring during nonworking hours away from the employer's premises." This has not escaped UCSF's unionized workforce. "We've put in a Request For Information on how they intend to enforce this," notes Paul Phojanakong, a cancer researcher and president of the UPTE Local 7. "From our reading of it, it's unenforceable."
Queries to UCSF asking, specifically, how the institution plans to regulate workers' legal behaviors during their personal time off-campus led, bizarrely, to university personnel requesting that esteemed tobacco researcher Stanton Glantz contact SF Weekly. His work on tobacco control policies and the deleterious effects of smoking are legion — but, he admits, "I'm not a lawyer," and can't address these issues.
After further requests, a written statement from UCSF public affairs director Jennifer O'Brien was sent our way: "The tobacco free requirement does not differ materially from a requirement that employees not consume alcohol during break periods or while on call. In fact, courts have concluded that a no-alcohol restriction for employees who are on call is a reasonable restriction."
This line of reasoning flummoxed labor lawyers. "There's no correlation," says Hina Shah, a professor at Golden Gate University School of Law (and Phojanakong's wife). "Part of the court's reasoning in sanctioning a no-alcohol policy is that it can lead to impairment. As far as we know, there's no link between tobacco use and cognitive abilities."
Emphysema, maybe. But not cognitive abilities.