Neil H. Deutsch
May 28, 2015
Hackensack ,NJ 07601
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The government protects citizens against workplace discrimination over certain characteristics that are beyond their control. Under federal discrimination law, smokers are not a “protected class.” Some state laws, however, prohibit employers from discriminating against smokers.
Most states allow employers to ban smoking in their workplaces. Employers have the right to control all employees’ exposure to second-hand smoke and fire hazards. It is not discrimination to require that employees go outside to smoke or smoke only when off-duty. Some laws, in fact, completely forbid smoking in any workplace.
In some states, employers can refuse to hire smokers. Employees are screened as part of the application process, testing them for nicotine. If the prospective employee’s results are positive, the company won’t offer the applicant a job.
Federal law says this practice is allowed – there’s no prohibition against it. Once a person has been hired, most states forbid firing the person for being a smoker or taking up smoking.
The American Civil Liberties Union argues that refusing to hire a smoker is a form of discrimination, because employers are excluding applicants because of actions they take on their own time. Most employers say that they’re not telling employees what to do when they’re not on the clock. They’re just not hiring them, which is their right. Federal law doesn’t address this issue.
Even though federal law doesn’t protect smokers from workplace discrimination, more than half of all states have enacted laws to do so. In these jurisdictions, smokers have no right to light up while working, but they can do so after hours.
Their employers can’t fire them or deny them jobs because of it. In these states, smokers are considered a protected class or group. Their own state will protect them, even if the federal government doesn’t. Of the remaining states, most have no legislation that addresses smokers’ rights in the workplace at all. They’re “silent,” meaning they neither allow discrimination nor do anything to protect against it.
The law surrounding discrimination against employees who smoke is complicated and evolving. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact an employment lawyer.