Ban vs. protect: State laws differ regarding smokers at workAs more companies balk at hiring people who smoke, employers would be wise to check their state laws to make sure that’s a legal option.
By: By Terri Dougherty/J. J. Keller & Associates, Inc., Superior Telegram
As more companies balk at hiring people who smoke, employers would be wise to check their state laws to make sure that’s a legal option.
While some employers can tell smokers they won’t get the job simply because they smoke, more than half of U.S. states have laws protecting people who want to smoke on their own time, away from the workplace.
“Employers in all states can still prohibit tobacco use on their own property,” said Ed Zalewski, editor of the Employment Law Essentials manual from compliance resource firm J. J. Keller & Associates, Inc. “In some states, however, you can’t refuse to hire a person because he or she smokes.”
Recently, a Texas health care system, an Ohio casino, an Idaho health department and a Pennsylvania health system made headlines for their refusal to hire smokers. In those states, and other states without laws that protect people who smoke, employers are able to implement a policy that states they won’t hire people who use tobacco products.
In other states, however, employers cannot ban employees from smoking when they’re not at work. In 28 states and in the District of Columbia, an employee’s right to smoke on his or her own time is protected.
State laws phrase this right in different ways. Some states, such as Connecticut, specifically note that employers cannot discriminate against those who smoke or use tobacco products outside of work. Kentucky and Louisiana say that employers cannot discriminate against employees who are smokers. In Tennessee, the right to use legal agricultural products is protected.
In other states, such as California, the wording is broader, stating that employers can’t fire or discriminate against employees who participate in lawful conduct on non-work time. In Wisconsin, employers cannot discriminate against employees who use lawful products when they’re off-duty. In Minnesota, employees can use lawful consumable products during non-work hours away from the workplace.
While Indiana does not allow employers to discriminate against those who use tobacco products away from work, it does allow employers to offer financial incentives to discourage smoking.
Many employers are doing what they can to stop workers from smoking because of rising health care costs. The Centers for Disease Control and Prevention estimates that cigarette smoking costs $96 billion in health care expenditures and $97 billion in lost productivity each year, and annually causes 443,000 deaths.
“Smoking does come with a lot of health risks,” Zalewski noted. “If you have employees who smoke, it could be impacting your health care costs.”
Geisnger Health System of Pennsylvania cited rising health care costs as one of the reasons it recently adopted a policy of turning away job applicants who smoke. Those who test positive for nicotine as part of a routine drug screening will be able to reapply in six months and will be provided a list of smoking cessation resources.
Even in states where employees can smoke when they’re not at work, an employer can designate the workplace as a smoke-free or tobacco-free zone. This is spelled out in some state laws, such as in Maine where individuals must “comply with workplace policies regarding tobacco.”
“You can prohibit smoking on your campus no matter what state law allows employees to do while away from work,” Zalewski pointed out. “But state law may prohibit making hiring decisions based on use of tobacco or other lawful products away from work.”
During the job interview process, employers can let candidates know that smoking is prohibited on company property. In states that prohibit such discrimination, however, employers shouldn’t ask if a candidate smokes or uses tobacco products.
“As with other discrimination laws, employers should avoid requesting information that cannot be considered in the hiring decision,” Zalewski said. “Just as you wouldn’t ask about age, national origin or other protected classes, you shouldn’t ask whether someone is a smoker or tobacco user.”
In some situations, the nature of an organization’s work allows it to adopt a policy of not hiring people who smoke. Some states allow companies with a bona fide reason to refuse to hire people who use tobacco products, even if state law protects smokers’ rights away from work.
“If you’re an organization with a primary purpose of encouraging people not to smoke, it should be reasonable to say you won’t hire people who smoke,” Zalewski said. “You’re not going to be able to effectively promote not smoking if you’re a smoker.”
J. J. Keller and Associates, Inc., headquartered in Neenah, Wis., offers a diverse line of products and services to address the broad range of responsibilities held by human resources and corporate professionals. To learn more, visit www.jjkeller.com and www.prospera.com.