Gwen Parkes' piece on smoking in the workplace and the Memorial Hospital of Chattanooga's ban on the hiring of smokers brings forth serious questions for employers.  First and foremost:  is this kind of ban legal?

Federal law is silent on the issue.  Accordingly, while there is protection for employees based on their race, color, religion, gender, national origin, age and disability, smokers are not similarly protected.  While there have been attempts to have smoking deemed a disability, they have failed.  As one court noted, "even assuming that the ADA fully applies in this case, common sense compels the conclusion that smoking, whether denominated as ‘nicotine addiction’ or not, is not a ‘disability' within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of ‘disability,’ which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke. In any event, both smoking and 'nicotine addiction' are readily remediable, either by quitting smoking outright through an act of willpower (albeit easier for some than others), or by the use of such items as nicotine patches or nicotine chewing gum."  The consensus seems to be that smoking does not rise to the level of epilepsy, alcoholism, or, for that matter, lung cancer. 

What about state law?  Over half of the states have some form of protection for smokers.  For example, some states protect applicants for government jobs who smoke, others protect all employees, and some just protect current employees and not applicants.  These laws are often couched in language that doesn't mention the use of tobacco.  For example, California's smoker protection law provides as follows:  "No person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including lawful conduct occurring during nonworking hours away from the employer's premises."  Nevada, which understandably has an enhanced interest in protecting the off-the-clock activities of its residents, provides: "It is an unlawful employment practice for an employer to fail or refuse to hire a prospective employee or discharge or otherwise discriminate against any employee concerning his compensation, terms, conditions or privileges of employment, because they engage in the lawful use in this state of any product outside the premises of the employer during non-working hours, if that use does not adversely affect their ability to perform their job or the safety of other employees."  Conversely, Mississippi's law is directed solely at smokers:  "It is unlawful for any public or private employer to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during non-work hours, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours."

Smoking bans raise broader questions, such as the one Parkes’ asks: "is it also acceptable to only hire people who are not overweight or who do not have children? What if someone has a junk food habit, or diabetes, do you not hire them because those unhealthy habits affect their performance as workers?"  To answer briefly, a diabetic would be shielded from discrimination under federal and applicable state law protecting the disabled; obesity has been found by several courts to be a disability under federal and state law; and, there are numerous state laws that protect individuals from discrimination because of their "familial responsibilities" or "family obligations."  As for "junk food junkies," like smokers, they may be protected due to the "lawful use" of Twinkies and Malomars.        

The ban on the hiring of smokers certainly raises concerns over "Big Brother."  Those concerns, however, are often being overridden by employers who seek a workforce more in tune with their goals or values (or less prone to taking time off via smoke breaks).  In determining the balance, employers must ensure that any decisions they make comport with applicable law.

[Note: Parkes' article can be read here .]