Posted by Alexis Menard on February 11, 2020 at 2:15 pm

Dear Professor:

Q: Can an employer fire me or refuse to hire me for being a smoker?

A: First distinguish between smoking at work and smoking off-premises.  Employers can ban smoking, including vaping, at work and on the job site.  Beyond that, some employers wish to refuse to hire or wish to fire smokers for three reasons: smokers impose higher health-care premiums and costs than non-smokers, smokers are less productive on the job (taking smoke breaks), and smokers have a higher absentee rate. 

Protection for smoking off-premises depends on which state your employer is located.  There is no federal law declaring smokers a “protected class” under discrimination laws.  You must look to the local laws for the answer.  Washington, D.C. and 29 states have enacted legislation which provides smokers some protection.  The protection either directly includes smoking or is wrapped in language that protects workers from adverse actions for off-duty conduct, be it smoking or other activities (California, Colorado, New York, North Carolina).  See https://en.wikipedia.org/wiki/Smoker_protection_law for a list of state statutes.

There may be variations in the applicability of the laws, depending on whether the employer is public or private, how many workers are employed by the employer, and whether a union contract addresses the issue.  As with other discrimination protection laws, there are exceptions if safety is involved or if a “BFOQ” exists. A BFOQ is a bona fide occupational requirement that makes a ban legitimate.

Francine Cullari, MA, MBA, JD

 (If you have a question of general interest in any area of business, send your inquiry to [email protected].  An answer will be posted in the immediately subsequent issue. Individual advice is not offered in this forum.  The opinion is that of the professor answering your question and not necessarily that of SOM or UM.)