Smoking in the Workplace

Does Your Workplace Smoking Policy Cover All the Bases?

If you could cut your break times and maybe even your health insurance rates by refusing to hire smokers, would you? While the idea is intriguing, these kinds of policies to stop smoking in the workplace may be illegal in so-called “smokers’ rights states.” Further, there are three practical reasons these preferences for hiring nonsmokers may not be such a great idea.

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(Download free smoking model policy including HR best practices and legal background.)

State Laws Protecting Smokers in the Workplace

Let’s start with a look at the state laws protecting smokers. Over half of the states have enacted laws that prohibit employers from taking any adverse employment action against employees or job applicants who smoke away from the employer’s premises during nonworking hours. These “smokers’ rights” laws typically prevent employers from not hiring smokers, or from disciplining or terminating employees solely because they smoke.

For example, New Jersey’s law states that employers may not refuse to hire applicants who smoke and may not discriminate against smokers in any term, condition, or privilege of employment. Connecticut, the District of Columbia, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, and Wyoming have similar laws.

A few states have enacted broader laws that prevent employers from firing or discriminating against employees because of lawful off-duty activities, such as smoking, drinking alcohol, and engaging in political or recreational activities. States with these broader laws include Colorado, Illinois, Minnesota, Missouri, Montana, Nevada, New York, North Carolina, North Dakota, and Wisconsin.

In Colorado, for example, it is an unlawful employment practice to terminate employees because they engage in a lawful activity off the employer’s premises during nonworking hours. This prohibition applies unless the activity relates to a bona fide occupational requirement, is rationally related to the employment activities of the individual employee, or is necessary to avoid a conflict of interest with the employer.

Similarly, in Illinois, an employer may not refuse to hire, discharge, or otherwise harm or discriminate against an individual because the individual uses lawful products off the premises of the employer during nonworking hours.

Workplace Smoking Regulations

Note that these state laws only protect off-duty activity. Smokers’ rights laws do not prevent you from placing a workplace smoking ban or regulating smoking in your building or factory, or at other worksites. In fact, many states impose restrictions on workplace smoking to protect nonsmokers from the health problems that may be caused by secondhand smoke. So, as a practical matter, even if your state prohibits discrimination against smokers, you can create policies to stop smoking in the workplace which ban smoking entirely and discipline any employee who violates your policy. Further, you can enforce your break rules against smokers and ban smoking breaks entirely, too.

A few states with smokers’ rights or similar legislation allow employers to offer health, disability, and life insurance coverage that distinguishes between smokers and nonsmokers, as long as the difference reflects the actual cost to the employer or is actuarially based. For example, under Minnesota’s law, health or life insurance plans may make coverage distinctions between employees based on use of lawful consumable products, provided that the rates reflect the actual difference in cost to the employer. Illinois, Montana, New York, North Carolina, South Dakota, West Virginia, Wisconsin, and Wyoming also have similar insurance coverage provisions.

Do Employers Have the Right to Not Hire a Smoker?

So finally, if you are in a state that does not prohibit discrimination against smokers, you can legally refuse to hire them. However, you should consider three practical arguments against this type of ban on hiring smokers. 

  1. Like any policy that regulates off-duty conduct, it is difficult to enforce. (Do you really want to run around sniffing your employees for telltale signs of smoking, as they walk in the door each morning?)
  2. You may find that the employee smoking policy limits your pool of qualified job applicants, especially among certain age groups, crafts, or professions.
  3. Even nonsmokers sometimes resent these policies, on principle, as unwarranted intrusions into employee private affairs.
A better approach is to design a workplace smoking policy that regulates smoking in a manner that fits your legitimate business needs. Typically, this approach addresses how to deal with employee smoke breaks more effectively, and involves the discipline of those who abuse break time. And, if you cannot make health insurance distinctions, consider including smoking cessation programs in any health and wellness initiatives you sponsor.

Overall, your best bet is to take a balanced approach that respects everyone’s needs and rights.

Regards,

Robin Thomas, J.D.
Personnel Policy Service, Inc.

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