employees who smell like smoke

Jennifer D

A painting contractor has employees that are smokers, and smell like smoke.
We are in an area that is very anti-smoking. He would like to be the
“different painter” by having his crews not smell like smoke. Can this
issue be addressed/enforced/disciplined with his employees from the aspect of good hygiene?
Also, what is the Colorado definition of a Bona-fide Occupational
Requirement? Can not smelling like cigarette smoke be a Bona-fide
Occupational Requirement?

Parabeagle

I don't see how you could characterize not smelling like smoke as a bona fide occupational requirement outside of a health care setting (but I'm sure there are some wizened, seasoned HR professionals who will take issue with me on that). I think you need to address it as you would any other fragrance issue, but I would add one caveat: Many states have enacted "smokers rights" legislation which prohibits discrimination against an employee for the "lawful, off-duty use of tobacco products."

Leslie

Not smelling like smoke is something you genuinely need for a job painting? Sounds to me like the guy just wants a crew that doesn't smell like smoke so he can make more money in an area where people hate smoking. That's not a bona-fide occupational requirement, that's a profit wish.

You could hire a crew of non-smokers I suppose. But telling present employees they are suddenly required to quit smelling like smoke in order to keep their jobs is suspect.

Jennifer D

I am completely on board with the fact that he is attempting to create a better profit margin due to having non-smokers/non-smoke smelling employees. What I am wondering if it can be addressed as you would any other hygiene issue is addressed with employees, I can't find anything for Colorado to "protect smokers rights". Also, there seems to be some wiggle room in the Colorado statutes concerning the "Bona-fide Occupational Reguirements" I was wondering what the legal minds thought on that one. Thanks for any help or guidance anyone can provide!

Parabeagle

According to my sources, Jennifer, Colorado does have a law prohibiting private employers from discriminating against employees based on the "use of lawful products" outside the workplace. (US Employer's Guide, 9th Ed)

As I said earlier - treat it as you would any other fragrance or hygiene issue and you should be ok. As for the term "bona fide occupational requirement" I think you would need to show definite work-relatedness in order for the BFOR to be acceptable to the DOL. I honestly don't think you can claim that a painter must not smell like smoke in order to paint.

terryb

I quit smoking 5+ years ago. My husband did not. If this prohibited me from working, it wouldn't be my husband I'd go after.

jimlegal

Agree with Parabeagle. Treat it like any other fragrance matter. Good luck...

Don D

BFOQ was birthed by the EEOC. I can't imagine that any EEOC investigator would come down on the side of this being a BFOQ. An impossible stretch! I can't imagine that the smell of smoke on a painter's clothes would be 'louder' than the smell of paint. Show me a painter who doesn't smoke and/or drink and I'll show you a painter that ain't really a painter. This guy is likely chasing an invisible rabbit and pulling your leg all at the same time. Watch him if he suggests redoing your driveway for upfront cash.

Jennifer D

BFOQ from the EEOC has a very strict definition, Colorado uses Bona-Fide Occupational Requirement. Which in the statutes seems to have some wiggle room that isn't in the EEOC's BFOQ. Does anyone have familiarity with Colorado's specific BFORequirement?

Don D

You should call your Colorada Department of Labor for an explanation of their terminology and its implications. I will also tell you that having a Department of Labor and their having certain terminologies and acronyms does not mean you will not still have to suffer through the same charges placed with the EEOC. On a more general note, I will go waaaay out on this limb and tell you that there is no way to prohibit an employee from smelling this way or that. It would be like pushing a string. A wiser use of the paint supervisor's time would be for him to tell them to spash some turpentine on their pants.