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Smoke Out: Is it legal to not hire smokers?

Companies are increasingly announcing that they won’t hire people who smoke cigarettes, but is this practice legal or does it constitute discrimination? Furthermore, is such a ban appropriate or even beneficial to your business?

According to HR Morning News, there is currently no federal law that protects smokers or entitles them to equal protections in the workplace because the Equal Employment Opportunity Commission doesn’t recognize smokers as a protected class. However, 29 states and the District of Columbia do offer protections for smokers (find out if your state is included here) under which you can’t refuse to hire people just because they smoke, although you can turn them down for other, legitimate work-related reasons.

If you’re not located in one of those states, you’re likely permitted to enact a smoke-free hiring policy and ban people who smoke from your workplace. Opinions on whether such a ban is appropriate differ.

For example, one 2009 study by the Journal of Tobacco Policy Research found that smokers do take more sick days that their non-smoking peers. Further, the study determined that even if a smoker is in relatively good health, there’s a strong chance he or she will still have higher medical costs than a comparable non-smoker over a three-year period.

However, HR Morning notes that a smoking ban is only worthwhile – from a healthcare cost-cutting standpoint – if smokers permanently quit, instead of just temporarily giving up until they have secured employment. To get around this issue, companies would have to perform constant nicotine testing, which can easily get expensive.

Further, a study from Tobacco Control found that a tobacco-free hiring policy might not be a good idea because if you decline to hire smokers for healthcare cost reasons, couldn’t you also rule out other high health benefit users, such as those with weight problems, high cholesterol or diabetes? Such actions would certainly raise discrimination concerns. Also, in discriminating against smokers, could you be missing out on a talented pool of potential employees? Could your competitors benefit from not having such a policy?

To address the issue, researchers at Tobacco Control instead say employers should encourage employees to participate in smoking-cessation programs, particularly those that are sponsored by the workplace. HR Morning notes that every analysis of such programs shows they’re cost-effective in improving absentee rates and time lost because of smoking-related illnesses, which is a win-win for everyone.

Does your workplace have a no-smoking policy? Do you feel that it is effective?

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