Holy Smoke! Employers Refusing to Hire Smokers

A recent trend is developing of late where employers are considering “no smoker” employment policies. These policies go beyond “no smoking in the workplace;” some ban employees from smoking at any time.  Such policies may lower insurance premiums.  Some employers also suggest that these policies cut down on productivity issues due to smoke breaks and high absenteeism due to smoking-related illnesses.  Opponents of these policies argue that they are discriminatory or in violation of privacy laws. This raises an interesting debate.

The legality of non-smoker policies may depend on state law.  No federal law protects smokers or entitles them to equal protections with regard to hiring, promotions, and the like because the EEOC doesn’t recognize smokers as a protected class.  However, 29 states and DC offer protections for smokers, as these laws limit an employer’s ability to make adverse employment decisions based on an employee’s off-duty conduct. 

Many employers debating whether to enact a similar policy should consider the pros and cons of doing so.  Such a ban is appealing from a pure profits standpoint.  Studies show that smokers take more sick days than their non-smoking colleagues do and smoking can lead to decreases in productivity due to regular smoke breaks.  Employees who smoke cost, on average, $3,391 more a year each for health care and lost productivity, according to federal estimates.  Reportedly, adult men who smoke incur $15,800 and female smokers incur $17,500 more in lifetime medical expenses than those who do not smoke. 

However, since a ban will only be an effective strategy if new employees are truthful about their habits and if current employees permanently quit smoking, enforcement will be key, but could also be tricky.  To make sure employees are compliant, screenings or even testing to make sure employees do not fall into new habits or back into old ones may be necessary, and will be expensive.  More broadly, a no-smoker policy could be a slippery slope.  If the ban is based on health-related costs, one could argue the prohibition should extend to employees with other “unhealthy” habits and characteristics (i.e. obesity, diabetes, caffeine consumption). 

Even in states that permit such a restriction, policies against hiring smokers may still be subject to challenge based on a variety of factors, including civil rights and invasion of privacy laws, the ADA, and ERISA. Further, a business might lose out on the best candidate for a job, simply because the would-be employee smokes, and the policy may also engender animosity among current employees. 

If you think a “no smokers” policy may work for your company, consider the following:

  • Precede implementation of the policy with the dissemination of information to employees about the policy and its aims;
  • Provide support, such as smoking cessation programs;
  • Weigh the risk of claims from smokers for perceived disability discrimination, invasion of privacy and other causes of action against the risk of claims from non-smokers with sensitivity to smoke; and,
  • Consider alternatives, like implementation of a wellness program that provides incentive for employees to stop smoking, or, if your state does not have a smoker discrimination law, require employees who smoke to pay more for health insurance.

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