Compliance Partner General Can You Refuse to...
Can You Refuse to Hire Smokers?
By Judy Kneiszel
A 2013 study from The Ohio State University found the annual cost of employing a smoker to be $5,800 higher than employing a nonsmoker. The study took lost productivity due to smoke breaks and sick days, as well as higher healthcare costs for smokers, into consideration.
Those costs may make it tempting to automatically reject a job candidate who smokes, but is it legal to have a “non-smokers only” hiring policy?
Smoker protection laws
There is no federal law prohibiting employers from not hiring smokers, but according to the National Center for Biotechnology Information (NCBI), at least 29 states and the District of Columbia have made it illegal to make employment decisions based solely on off-duty smoking. These laws are intended to prevent discrimination and protect privacy.
There are some exceptions written into these laws. Some state smoker protection laws do not apply to non-profit organizations in which the use of tobacco products could be viewed as incompatible with the organization’s overall purposes or objectives.
Wisconsin does prohibit discrimination against applicants or employees who use a lawful product off the company premises during nonworking hours. Examples of lawful products include tobacco, alcohol, and lawfully obtained prescriptions. The state Department of Workforce Development provides details on its website “Use or Nonuse of Lawful Products” at https://dwd.wisconsin.gov/er/civil_rights/discrimination/use_of_lawful_products.htm.
Laws vary by state
Smoker protections differ from state to state when it comes to the types of employers covered. Most extend to public employees, but 15 include private sector employers.
In some states, if tobacco use would adversely affect job performance or pose a safety concern, the employer could be exempt. Also, in some states, if there is a rational basis or essential business-related interest in not employing smokers, the employer may be exempt.
If you’re wondering whether smoking can legally be a deal breaker in your hiring process, consult the secretary of state’s office in the state where you are hiring.
The NCBI suggests that instead of not hiring smokers, employers make no distinction in hiring, but provide effective and evidence-based smoking cessation services.
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