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Can I Refuse to Hire a Smoker?

By Christopher Coble, Esq. | Last updated on

Maybe you just don't like the habit, or don't want your office to smell like cigarettes. Or maybe you're more worried about the healthcare costs or extra sick days.

Whatever your reasoning, you might be thinking of joining the many companies that are now refusing to hire smokers. But are these bans legal? You might want to consult your state statutes to find out.

Right to Light Up

For the most part, the rights of non-smokers trump the rights of smokers at work. Employers are free to ban smoking tobacco in the workplace, although they may also designate smoking areas. And some states have strict anti-smoking laws that apply to offices, restaurants, and other places of employment.

But what about hiring and firing? Can you test job applicants for nicotine? Can you fire an employee for lighting up at home? Can you give smoking employees an ultimatum to quit cigarettes?

Statutory Smoker Safeguards

While federal employment law doesn't bar discriminating against smokers, 29 states have enacted so-called Smoker Protection Laws, which prevent employers from discriminating against smokers. Four of these states, California, Colorado, New York, and North Carolina, also don't limit the smoker protection to tobacco use as their employment laws ban discrimination based on any lawful activities.

State smoker protection statutes can vary, but they generally prohibit employers from firing or refusing to hire an employee for smoking away from the employer's property or during non-working hours. Even in states without specific smoker laws, tobacco users may have protections under other employment discrimination laws.

While smokers are not a protected class under federal employment law, their employment, current and prospective, may be protected by state smoker protection laws. In some cases, it may help to talk to an experienced employment attorney to make sure your company is complying with state and federal employment laws.

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