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Can Employers Discriminate Against Smokers?

By Stephanie Rabiner, Esq. | Last updated on

In a recent story out of Arizona, health care insurer Humana has decided to internalize a policy of smoker discrimination, announcing that it will screen new employees for nicotine, and no longer hire those that test positive.

Humana is not the first company to refuse to hire smokers. With businesses trying to cut insurance costs by cutting back on employees who raise health concerns, smokers have come under fire in recent years.

Is such smoker discrimination legal?

Federal employment law does not protect against smoker discrimination, instead only opting to prohibit those employment activities that discriminate on the basis of race, color, religion, sex, national origin, age, disability, and genetics.

However, in addition to federal laws, states are free to protect workers from discrimination based on a variety of other classifications, such as marital status, income, familial status, political affiliation, sexual orientation, and even use of tobacco products.

Twenty-nine states and the District of Columbia currently have laws that protect workers from smoker discrimination, prohibiting employers from refusing to hire smokers and from banning them from smoking outside of the workplace.

However, many states also have laws that ban, or allow employers to ban, smoking inside the workplace or on an employer's property. Even in states that don't have this exception, employers can ban smoking on the premises if another employee requests a reasonable accommodation under the American with Disabilities Act.

In the end, whether smoker discrimination in a given situation comes down to the state you live in, as well as how and where an employer is trying to regulate smoking.

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