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Follow on Google News | Legal Publication Reports Discrimination Against Smokers Under ObamacareCorporate Counsel, a legal publication, has warned that the Affordable Care Act [ACA] sanctions charging smokers 50% more for health insurance than nonsmokers, and that some corporations are going further and declining to hire smokers at all.
Although the article reports that "under a provision of the ACA, smokers can be charged up to 50 percent more than nonsmokers for health insurance," the statute appears to mandate higher charges. 42 USC § 300gg provides in express terms that "With respect to the premium rate charged by a health insurance issuer for health insurance coverage offered in the individual or small group market, such rate SHALL vary with respect to the particular plan or coverage involved only by . . tobacco use, except that such rate shall not vary by more than 1.5 to 1." [emphasis added] The word "shall" is usually regarded in statutes as mandating rather than simply permitting a particular result, explains law professor John Banzhaf, who pioneered differential health insurance premiums in the mid 1980s, twice persuaded the Department of Health and Human Services to OK such surcharges for smokers, and helped persuade Congress to include the concept in the ACA. Corporate Counsel magazine reports that "John Banzhaf, a public interest law professor at George Washington University Law School, says the surcharge is necessary to keep employers and nonsmokers from having to bear the medical costs smokers impose on the health care system. 'It’s very unfair not to do something about it,' he says. . . . Every employee who smokes, he says, costs the employer more than $10,000 in additional expenses that are 'totally unnecessary.'" The legal publication also notes that "although only anecdotal evidence is available, some employers are deciding that the best way to avoid such costs is to not hire smokers at all. . . . But despite laws prohibiting the discrimination against smokers in the hiring process, Banzhaf hasn’t 'found a single case where there’s been a holding in favor of a smoker' in such a case. State laws limiting the practice are rarely enforced, according to Banzhaf. And when they are enforced, he adds, they’re written so poorly that they offer workers little protection. Banzhaf has written a paper that offers guidance for employers looking to decline hiring smokers in states with such laws." JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Suite S402 Washington, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ End
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