By: Walter J. Liszka, Esq.

It has long been assumed that an employee who is a smoker can cost his employer substantial additional monies (i.e. health and disability-related costs and extra "smoke breaks"). There have been substantial numbers of companies who have refused to hire smokers for any position in their organization (i.e. Turner Broadcasting). Also, a vast number of hospitals and health care professional organizations have stopped hiring smokers in the past few years. In fact, in many states smoke-free workplaces are extremely common and, in some cases, smoke-free campuses have become popular. However, before leaping the chasm and banning smokers from any job in your organization, one must consider the potential legal pitfalls.

There can be enormous cost and complexity involved in banning the hiring of smokers. In some instances, groups from which qualified potential employees are drawn are quite heavily populated by smokers and, therefore, otherwise qualified applicants to fill an opening would be eliminated from consideration. Secondly, there are practical difficulties in enforcing a ban eliminating all smokers for employment. Assume, for example, that an employer insists on a negative test for nicotine prior to hiring. This test is fairly expensive and somewhat intrusive, but does it ensure that the once-hired applicant will never smoke in his/her career? Does the employer have to impose an annual nicotine test, which will obviously increase the cost to the employer, but may also have potential morale problems if one is to assure the nicotine-free applicant remains nicotine-free?

In addition to the above policy consideration, there are currently 29 states, and the District of Columbia, that have some laws with regard to prohibiting discrimination based on non-work activities:

• 18 jurisdictions have enacted statutes prohibiting discrimination specifically against smokers (Connecticut, District of Columbia, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, West Virginia and Wyoming. Note: the State of Virginia has passed such legislation only for public employees).
• 8 states protect the use of lawful products (Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee and Wisconsin).
• 4 states offer some type of statutory protection for individuals engaged in lawful activities (California, Colorado, New York and North Dakota).

These statutory provisions obviously would prevent an employer from terminating or discriminating against an employee or applicant who smokes tobacco, which is still a legal product in the United States. Obviously, before an employer would seek to implement the non-hiring of smokers, careful consultation with legal counsel would be necessary to assure that there are no mine fields in that state's legislation.

There is also the possibility that refusal to hire smokers might violate the provisions of Title VII of the 1964 Civil Rights Act as a form of disparate treatment in the enforcement of work rules or potentially even a violation of the Americans with Disabilities Act under the theory that the individual smoker is "perceived as" having a disability or that nicotine addiction might be codified as a disability under the ADA due to its recent liberalization. It is also possible that a claim of refusing to hire a smoker might be impacted by a violation of privacy laws due to out-of-work conduct.

It is the opinion of the writer that before going down the path of banning the hiring or employment of any smoker, the employer carefully review the situation thoroughly to uncover any potential problem areas because the treatment/cure for the disease might be worse than the disease itself.