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Smokers Have “Protections” in Employment??

Christine Batten, PHR
by Christine Batten, PHR on August 9, 2016


Smoking is the largest cause of preventable illness and death in the United States. It is estimated that workers who smoke each cost their employers $5,800 a year, and can range from $2,885 to $10,125 annually.  The biggest costs come from productivity lost to smoking breaks, followed by health care expenses in excess of what non-smokers end up paying.  

For these reasons above (among others), many employers have prohibited smoking in the workplace to improve employee health and productivity and minimize their company’s exposure to claims by non-smokers resulting from exposure to second hand smoke. All employers have the right to ban smoking entirely in the workplace, regardless of state laws. However, employers  should be aware of related legislation in their state. For example, some states require employers to have policies protecting nonsmoking employees from the hazards of environmental tobacco smoke. In other states, the non-workplace use of lawful tobacco products is protected. 

Other reasons to enact no-smoking policies in the workplace include reduction of injury, illness and mortality rates for smokers; health insurance claims; and costs incurred as a result of damaged equipment and furniture from smoking. Reducing fire danger and increasing productivity may also be employee considerations. However, there are specific areas of concern employers should be aware of when considering implementation of a smoking policy.

What Employers Should be Aware of When Implementing a Smoking Policies  

Smoking Bans in Public Areas 

At least 28 states have enacted statewide bans on smoking in all enclosed public places, such as government buildings, retail stores, hospitals, schools, food preparation areas and bars and restaurants. While other states do not have such bans on smoking in these areas, it does not mean you are prohibited from having a smoke-free workplace in those states, it simply means you are not required by law to do so. 

Prohibited in the Workplace 

At least 30 states specifically require employers to adopt policies barring or significantly restricting smoking in any workplace. Many of these states also require posting of notices related to smoking restrictions and designated smoking areas. 

Smokers’ Rights 

With some restrictions, employers are free to hire whomever they want. Federal and state laws prohibit discriminating against people for a variety of protected reasons (for example, race, sex, and national origin). Existing anti-discrimination laws do not prohibit employers from discriminating based on whether or not the person is a smoker…sort of. 

While employers should be aware of the specifics in their state, there is no federal law establishing a “right to smoke,” and federal courts have decided that the United States Constitution provides no such right.

Some states however, do have laws that protect smokers to some degree. However, due to the health hazards related to smoking, smokers are not completely protected in the same way that non-smokers are. For example, smokers can be required to pay more for their company health insurance and some localities have banned e-cigarettes at work. Non-smokers also have legal rights that relate to exposure to smoking and smoking areas in the workplace. 

In some states, it is legal for an employer to ask you whether you are a smoker, and to hire, or not hire you based on that answer. However, at least 29 states and the District of Columbia prohibit employers from making employment decisions based on lawful activity in which applicants engage while off duty. The details of these laws vary by state, with some of them generally covering any off-duty conduct (California, Colorado, New York, North Dakota and Wisconsin), while others expressly prohibit discrimination against tobacco users (Connecticut, District of Columbia, Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia and Wyoming). 

Employers may be able to get around anti-discrimination laws concerning hiring in certain states if being a non-smoker is an important part of a specific job's qualifications. For example, an anti-smoking advocacy group, like the American Lung Association, could choose not to hire smokers, and not be in violation of the applicable anti-discrimination laws. Likewise, a health care organization that has a strong mission of promoting heart-healthy behaviors to the community at large, its patients and its workforce may be able to argue that excluding smokers from employment is consistent with and furthers the employer’s mission - and not because of a perception that smokers are unhealthy and likely to lead to increased insurance costs - and therefore the job-relatedness exception should apply.  These matters have not been widely decided in the courts, so caution should be used if employers intend to exclude smokers from employment.

Workplace Policies 

While many states have laws requiring employers to adopt a smoking policy, others have laws which prohibit employers from:

  • requiring employees to abstain from the use of tobacco products outside the course of employment; or
  • discriminating against job applicants or employees based on their off-duty use of tobacco. 

Whether smoking is restricted in the workplace by employer choice or state law, employers should be cautious to respect the rights of both smokers and non-smokers with policies and practices. Some guidelines to consider which will help create a harmonious setting for both smokers and nonsmokers are:

  • Allowing employees to smoke only during rest or meal breaks;
  • Scheduling break times so that smokers and non-smokers have the opportunity for separation;
  • Restricting smoking to specific areas – such as a ventilated employee lounge or outside area;
  • Allowing job reassignment or other reasonable accommodations for smoke-sensitive employees. 

Remember, despite the various state laws concerning smoking in the workplace, ALL employers have the option to ban smoking entirely in the workplace.

 A Business Owner's Guide to HR


Christine Batten, PHR
Christine Batten, PHR

Christine has over 20 years of HR related experience with a background in labor and employment law.