Employers generally have a right to prohibit employees from smoking in the workplace. However, some employers go a step further by refusing to hire employees who smoke or threatening to fire employees who can’t or won’t kick the habit. Whether this is legal depends on your state’s laws.
Smoking at Work
Most states either require or allow employers to ban smoking in their workplaces. Some states allow employers to designate a smoking area in the workplace, which may have to be physically enclosed and separately ventilated. In other states, employers may allow smoking only in certain types of establishments, like bars. And, in other states, all employers must completely ban smoking from the workplace.
State or local laws may also prohibit smoking near the workplace. For example, it may be illegal to smoke within a certain distance of the building’s entrance or exit doors. To find out what your state allows and prohibits, see Nolo’s Workplace Smoking Laws in Your State.
Employers may also need to create a smoke-free work environment under the Americans with Disabilities Act (ADA), if an employee has a disability that is exacerbated by second-hand smoke. The ADA requires employers with 15 or more employees to make reasonable accommodations to allow employees with disabilities to do their jobs, unless it would create an undue hardship.
Whether an employer can refuse to hire or retain employees who smoke depends on state law. A number of states, including California, Colorado, and New York, prohibit employers from discriminating against employees for lawful activities that they engage in during their off-work hours. In some states, these laws explicitly refer to tobacco use. If your state has an off-duty conduct law like this, your employer may not make job decisions based on your decision to smoke or use other tobacco products while off duty.
To date, off-duty conduct laws protect only employees who smoke tobacco, not those who smoke marijuana. So far, this is true even in states that have legalized marijuana, either for medicinal or recreational use. In one recent case, the Colorado Supreme Court upheld an employer’s decision to fire a quadriplegic employee for using medical marijuana while off duty to treat his symptoms, even though the state has long allowed medicinal use of marijuana. The state’s off-duty conduct law did not protect the employee, the Court found, because marijuana use is still illegal under federal law.
An Employment Lawyer Can Help
If you believe your rights as a smoker or a nonsmoker have been violated, speak to an experienced employment lawyer. If your employer is making job decisions based on your decision to smoke, in violation of your state’s off-duty conduct laws, you may have grounds for a lawsuit—or at least, ammunition to argue that your employer should change its policy. And, if you believe your employer is legally required to ban smoking or provide separate working areas for smokers and nonsmokers, a lawyer can help you assert your rights.