Can an employer implement a no-smokers hiring policy?

Although individuals who smoke have no constitutional right to smoke or federal employment law protection, some states prohibit discrimination based on legal, off-duty activities, which may apply in this case. Some states go as far as to specifically prohibit employers from making complete abstinence from smoking a condition of employment, so employers are advised to check with their attorney for laws in the states an employer has employees. Once the employer has confirmed there is no state employment law prohibition against no-smoker hiring policies, the employer will want to consider the advantages and disadvantages of such policy.

Some of the potential advantages include improved morale of nonsmokers, better air quality and lower building maintenance fees, decreased health care claims and/or premiums, and lower premiums for fire and casualty insurance.

Some of the potential disadvantages include a more limited pool of qualified job applicants, difficulty in monitoring employees' after-hours activities and employers' increased exposure to lawsuits for discrimination and invasion of privacy.

Employers that cannot or choose not to implement a preferential hiring policy may consider a smoke-free workplace policy as an alternative. At minimum, a smoke-free workplace reduces the employer's liability for lawsuits by nonsmokers (for exposure to secondhand smoke) and could reduce the employer's building maintenance and insurance expenses.

As with any new policy consideration, employers are encouraged to consult legal counsel prior to policy implementation. Employers will want to ensure the policy is properly communicated and administered consistently without regard to the applicants' race, sex, national origin, age or religion.