Smoking is NOT a Protected Category, UNLESS…

by Michael Haberman on January 30, 2012 · 1 comment

Being a human resources consultant in the state of Georgia in the United States I am often asked whether or not you can keep people from smoking while at work. Of course the answer is “yes”. In Georgia you can have a totally smoke free work place if you so desire. In fact you can refuse to hire an individual if they smoke at all, as long as you inform them in the interview process that you do not hire smokers. I tell people that smoking is not a protected category, unless…. you happen to be in a state that has passed laws protecting smokers rights.  

Generally employers everywhere can prohibit tobacco use on their property, regardless of where the company is domiciled. What varies from state to state however is the prohibition on the amount of control a company can exercise over a worker in their own free time. In Georgia it is permissible for an employer to refuse to hire a smoker. However in 28 states an employee’s right to smoke on his or her own free time is protected. According to Terri Dougherty of J.J. Keller & Associates, in an article in the Atlanta Journal-Constitution, these rights will be phrased in different ways. According to Ms. Dougherty

“Some states, such as Connecticut, specifically note that employers cannot discriminate against those who smoke or use tobacco products outside of work. Kentucky and Louisiana say employers cannot discriminate against employees who are smokers. In Tennessee, the right to use legal agricultural products is protected…. In other states, such as California, the wording is broader, stating that employers can’t fire or discriminate against employees who participate in lawful conduct on nonwork time.”

(Of course this makes me wonder what California employers do in situations where employees are using legalized, medicinal marijuana. Any California employers want to elaborate?)

The article said that during an interview employers should make it clear on what the company’s tobacco policy is during the interview. In Georgia that is a requirement. However the article does not recommend that you ask about smoking during an interview. In this case the article does liken smoking to other protected categories and recommends that employers avoid asking questions about tobacco use. However, if you are a company that has a bona fide reason for not hiring smokers, such as being an organization that puts out messages about lung cancer, then you have more latitude in your questions.

Georgia is one of the states that allow an employer to ban smoking both at work and at home. It is also allowed, if an employer does not go to that length, to charge higher insurance premiums for smokers. However, I wonder how long that may continue. In a post I wrote on April 11, 2011 (Genetic Information NonDiscrimination: Will This Lead to Smokers Being Protected?)  I mused how long it would be before someone claimed protection under a Federal statute. In fact the more likely course of action may be seeking protection under the Americans with Disabilities Act.

But for now there is no Federal protection for smokers. You will have to make sure you understand your state laws or local jurisdiction laws in order to best administer you nonsmoking policy. If you would like to check out your state click here, Workplace Smoking Laws.

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{ 1 comment… read it below or add one }

Sergey Gorbatov January 31, 2012 at 1:13 am

So what´s the trend? Choosing between hiring a smart talented smoker and an average fitness freak, the company will go for the latter? Just being provocative.

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