Smoking

MaryJ

Is it against a law to not hire someone because they smoke? If I have a policy that says that we don't hire smokers, is that discriminatory?

Parabeaglex2

[font size="1" color="#FF0000"]LAST EDITED ON 04-25-05 AT 02:58PM (CST)[/font][br][br]Depends. Check your state laws. Oregon and a couple of other states have laws prohibiting discrimination against someone for the lawful use of tobacco and/or "legal substances."

As a general rule, unless your state law prohibits it, I don't think your policy is illegal.

lhill

One of the attorneys from the Texas Workforce Commission told me it is not illegal to state that you don't hire smokers. It could only help your insurance rates!

Don D

Again, it depends on your state law. Perhaps in Texas. In MS, it is against the law. She's from Louisiana and I have no idea.

hhaynal

It was in the news recently that a county courthouse outside of Philadelphia was implementing a regulation for all new employees to be non-smokers. In the news and papers for several weeks. As far as I know, it is still in force, but perhaps Crout, PA can offer some local insight.

System

There is no federal protection for smokers. In Maryland we can refuse to hire someone because they smoke.

Don D

this is a serious question: Can you also refuse to hire someone who uses smokeless tobacco or someone who consumes alcohol?

System

I say you can refuse to hire them. There is no protected class for either one. The problem would be that it would be more difficult to determine. You could ask the applicant, but he or she might lie. Another problem would be that you would eliminate probably 90% of your applicants with the alcohol question.

Whatever

It is illegal here. Furthermore, it is unenforceable. What would you do follow them home and break in to catch them in the act?

System

Assuming we had such a policy; no, we would not scope the employee out to see if he or she smoked. If the employee, during the interview said she didn't smoke, that would be for her to hold true. If we discovered by other means that indeed she did smoke, she could be terminated for lying during the interview OR for smoking.

TJH

Against the law in Oklahoma as well. Check with your state.

Crout

Of course it's discriminatory. The question is; is it illegal discrimination? The answer to that depends on your state and/or local law, since there is no Federal employment protection for people who smoke. I don't know anything about a county court near Philly that refuses to hire smokers. The Philly City Council is currently debating a city-wide ban on smoking in bars and restaurants, but has not yet voted on the measure. The big concern there seems to be that we don't want our drinkers who smoke to flock to Bucks, Delaware, or Mongomery county to do their drinking and smoking.

Don D

Why not? Your state/county would realize much more from traffic tickets and DUI fines than the measely amount you get off alcohol taxes. Jobs would be created for highway department trashmen. And the funeral homes in the area would see a hefty increase in business too. Think of the economic prosperity that would result. Think outside the box Crout!

Crout

I agree, plus you'd see lower beer prices here in town as local bars would have to compete. However, the folks on Philly City Council are not paid to think one inch outisde the parameters of their own neighborhoods, and that's why the vote was postponed.

System

Crout, they won't go to Bucks. Delaware is 'no smoking in any building' even in bars. Those folks come over here to Elkton or New Jersey.

Crout

I meant Delaware County, PA.

MaryJ

Since I posted my original question, I found the following:
"Though individuals who smoke have no constitutional right to smoke or federal employment law protection, there are some states that prohibit discrimination based on legal, off-duty activities. And some states even go as far as to specifically prohibit employers from making complete abstinence from smoking a condition of employment. According to the Bureau of National Affairs, those states are California, Colorado, Connecticut, Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, Wisconsin and Wyoming."

Thanks everyone for your input.

Tammy Binford

Interesting discussion. The subject of requiring employees not to smoke is one of the topics included in a new book from M. Lee Smith Publishers called "50 Employment Laws in 50 States." The book includes state-by-state charts on 50 major employment law issues including state laws on drug/alcohol testing, whistleblowing, background checks, wage deductions, military leave, family and medical leave, smoking/tobacco use, and 43 other topics.

Our chart on off-duty conduct lists the same states as those in Post 14 above as the ones prohibiting employers from discharging or refusing to hire someone based on off-duty tobacco use. Plus, DC lists such a law.

Information for the 50 charts was supplied by the law firms in each state that make up the Employers Counsel Network. That means each state's law summaries were prepared by attorneys working in that state.

Tammy Binford
Editor, M. Lee Smith Publishers

Gillian3

Between the time you started researching and actually publishing, the book became out of date. There is a new law somewhere.