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Can a Company Not Hire Smokers?

smokersWhether you’re an avid smoker or just one who enjoys the occasional cigarette to ease the stress of a long work week, one of the top questions that smokers ask is, can accompany not hire smokers? Or in other words, can an employer refuse to hire you because of your desired tobacco use?

Employers may dislike hiring smokers because of the detrimental effects of second-hand smoke, possible increase in healthcare coverage or the decrease in productivity due to the distractions of constant smoke breaks. While other employers may be concerned that smoking is an annoyance to their non-smoking employees which can cause unnecessary friction in the workplace.

Currently, many corporations and companies have created employment policies that prohibit smoking indoors and are now refusing to hire smokers in its entirety. However, are these policies legal? Read on for more clarification and information.

Smoker’s Rights

In general, many states have the right to ban smoking in workplaces, while others have strictly prohibited the use of tobacco in offices, theaters, transportation and restaurants. California bans smoking in any enclosed work area and that extends to the lobbies, waiting areas, elevators, stairwells, restrooms and lounges that are the structural part of the building. But, these employers are required to provide a designated smoking area such as a breakroom and allow smokers to engage in tobacco use during off-duty hours or a distance away from the premises.

Although, one is free to light up a cigarette, smokers do not have a fundamental right to smoke nor are they considered a protected class. So as long as regulations are rationally related to a legitimate government purpose such as protecting the health and welfare of others, these policies would be held constitutional. Courts have recognized that nonsmokers are unable to fully protect themselves from involuntarily inhaling tobacco smoke and thus the rights of smokers are often trumped.

Can a Business Fire Smokers?

As of now, there are 29 states that provide smoker protection statutes and prevents employers from discriminating against smokers. California’s employment laws bans discrimination against any lawful activities and thus would prohibit employers from refusing to hire someone that smoked in a lawful manner; which is during non-working hours or away from the employer’s property. Although the federal government does not consider smokers as a protected class, they can still be afforded protection by their respective state statutes.

This basically means that a company can make a decision to hire, fire, promote, demote any employee, for any reason, at any time, even without a reason. However, a company cannot fire a worker for something they are doing on their own time during nonwork hours. These may seem like completely different concepts, and the reality is, they are. The intersection between an employee’s rights to do what they want during their nonwork hours, and in employer’s right to hire and fire at will is what causes the gray area in smoker’s rights.

Can a Company Not Hire Smokers?

The question of whether a business cannot hire smokers is also a grey area because it intersects two concepts: the employer’s right to hire anyone it wants, and an employee’s rights not to be discriminated against for health and medical conditions. Smoking is not a protected right. However, if a smoker is suffering from medical conditions,  the employee does have a right not to be discriminated against based on those health or medical conditions.

Examples of Permissible Conduct

Because this is a gray area, it can be hard for employees and employers to tell what is or is not legal. Here are some examples of conduct that is not necessarily illegal:

  • An employee who smokes not being hired because there is a better candidate
  • An employee who smokes not being hired because there is a better personality fit with the company
  • An employee who smokes being demoted or terminated because of poor performance
  • An employee who smokes being terminated because of a change in the company’s needs

Examples of Impermissible Conduct

  • An employee who smokes being asked during a job interview whether they have developed emphysema
  • An employee who smokes being told that work that the smoking is causing an increase in the employer’s health insurance premiums and the need to be let go for this reason
  • An employee who smokes being fired after requesting time off to get medical treatment for lung related medical conditions
  • An employee who smokes being fired after being told by doctors they have developed lung cancer

As you can see, there is a fine line between an employer’s impermissible conduct that could become actionable as a violation of state or federal laws, and the same outcome which is not necessarily illegal. To get more help about whether your rights have been violated based on your smoker status, contact an attorney to go over the facts of your specific situation.

Getting Legal Help

readreviewssgGetting legal help to determine whether your rights been violated is fast and easy. Call Axis today for a confidential consultation to determine whether you have viable claims for wrongful termination, retaliation, or violation of your state and federal rights under employment laws. In as little to as 10 to 15 minutes, you could have peace of mind by speaking with an experienced employment attorney.

AXIS Legal Counsel is an employment law firm representing clients in numerous kinds of lawsuits and disputes involving some of the nation’s largest employers. Whether it is sexual harassment, other kinds of harassment, discrimination, race discrimination, pregnancy discrimination, medical/disability discrimination, racial harassment, retaliation, hostile work environment, wage/hour, workplace bullying, or other claims, AXIS Legal Counsel is experienced in the field of employment and labor law and focused on providing high-quality legal service.

For information on retaining AXIS Legal Counsel to represent you or a loved one with an employee rights’ claim, contact [email protected] or call (213) 403-0130 for a confidential consultation, or visit our Employee Rights Practice or Individual Rights portal. AXIS is a Los Angeles, California law firm that provides victims of labor and employment law violations with aggressive representation to pursue the maximum extent of their rights.


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