Does Your Smoking Policy Cover All the
Bases? Q&A
If you could cut your break times and maybe even your health insurance
rates by refusing to hire smokers, would you? While the idea is
intriguing, this policy may be illegal in so-called smokers’ rights
states.
Further, there are three practical reasons these preferences for
nonsmokers may not be such a great idea. |
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THIS WEEK’S E-TIP: Does Your
Smoking Policy Cover All the Bases? Q&A
Q: We are a no-smoking facility, but we allow smoking
outside
during breaks and are getting tired of smokers who take too many
breaks
and leave the entranceways littered with cigarettes. We also are
looking
for ways to lower our health insurance premiums. Can we now
require
that all employees be nonsmokers and refuse to hire smokers?
A: You may be able to if you are * not * in a state that
has a
“smokers’ rights” law prohibiting employers from discriminating
against
employees who smoke during nonworking time when away from the
job.
But, even if you are in one of those states, there are three
good reasons
for not imposing a complete ban on hiring smokers, discussed
below.
(Download
free Smoking model policy including HR best practices and
legal background.)
First, let’s take a look at the state laws protecting smokers.
Over half of
the states have enacted laws that prohibit employers from taking
any
adverse employment action against employees or job applicants
who
smoke away from the employer’s premises during nonworking hours.
These “smokers’ rights” laws typically prevent employers from
hiring only
nonsmokers or from disciplining or terminating employees solely
because they smoke.
For example, New Jersey’s law states that employers may not
refuse to
hire applicants who smoke and may not discriminate against
smokers in
any term, condition, or privilege of employment. Connecticut,
the District
of Columbia, Indiana, Kentucky, Louisiana, Maine, Mississippi,
New
Hampshire, New Mexico, Oklahoma, Oregon, Rhode Island, South
Carolina, South Dakota, Tennessee, Virginia, West Virginia, and
Wyoming have similar laws.
A few states have enacted broader laws that prevent employers
from
firing or discriminating against employees because of lawful
off-duty
activities, such as smoking, drinking alcohol, and engaging in
political or
recreational activities. States with these broader laws include
Colorado,
Illinois, Minnesota, Missouri, Montana, Nevada, New York, North
Carolina, North Dakota, and Wisconsin.
In Colorado, for example, it is an unlawful employment practice
to
terminate employees because they engage in a lawful activity off
the
employer’s premises during nonworking hours. This prohibition
applies
unless the activity relates to a bona fide occupational
requirement, is
rationally related to the employment activities of the
individual employee,
or is necessary to avoid a conflict of interest with the
employer. |
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Similarly, in Illinois, an employer may not refuse to hire,
discharge, or
otherwise harm or discriminate against an individual because the
individual uses lawful products off the premises of the employer during
nonworking hours.
Note that these state laws only protect off-duty activity. Smokers’
rights
laws do not prevent you from regulating or restricting smoking in your
building or factory, or at other worksites. In fact, many states impose
restrictions on workplace smoking to protect nonsmokers from the health
problems that may be caused by secondhand smoke. So, as a practical
matter, even if your state prohibits discrimination against smokers, you
can ban smoking entirely from your workplace and discipline any
employee who violates your policy. Further, you can enforce your break
rules against smokers and ban smoking breaks entirely, too.
A few states with smokers’ rights or similar legislation allow employers
to
offer health, disability, and life insurance coverage that distinguishes
between smokers and nonsmokers, as long as the difference reflects the
actual cost to the employer or is actuarially based. For example, under
Minnesota’s law, health or life insurance plans may make coverage
distinctions between employees based on use of lawful consumable
products, provided that the rates reflect the actual difference in cost
to
the employer. Illinois, Montana, New York, North Carolina, South
Dakota, West Virginia, Wisconsin, and Wyoming also have similar
insurance coverage provisions.
So finally, if you are in a state that does not prohibit discrimination
against smokers, you can legally refuse to hire them. However, you
should consider three practical arguments against this type of ban.
First, like any policy that regulates off-duty conduct, it is difficult
to
enforce. (Do you really want to run around sniffing your employees for
telltale signs of smoking, as they walk in the door each morning?)
Second, you may find that the policy limits your pool of qualified job
applicants, especially among certain age groups, crafts, or professions.
Finally, even nonsmokers sometimes resent these policies, on principle,
as unwarranted intrusions into employee private affairs.
A better approach is to design a policy that regulates smoking in a
manner that fits your legitimate business needs. (Download
free
Smoking model policy including HR best practices and legal
background.) You can combat smoker misuse of break time by
disciplining
the abusers.
And, if you cannot make health insurance distinctions, consider
including
smoking cessation programs in any health and wellness initiatives
you
sponsor.
Overall, your best bet is to take a balanced approach that respects
everyone’s needs and rights. |
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Subscribers to the
Personnel Policy
Manual System and HR Policy Answers on
CD can find a model Smoking policy and a discussion of smokers’
rights
laws in Smoking, Chapter 607, notes 8 and 14.
If you don’t have the manual, but would like to order a trial
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