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Workplace Ban on Smokers & Nicotine Testing

Question: Can we have a policy banning the hiring of smokers, and is it legal to test applicants for nicotine?

Response & Analysis:

It depends on where you operate your business. While smokers are not a pro¬tected class at the federal level, 28 states and the District of Columbia have passed smoker-protection laws, outlawing the practice of banning the hiring of smokers.

Tobacco-free hiring policies, or other laws prohibiting discrimination based on off-duty conduct, designed to promote health and reduce insurance premiums, have been enacted by a growing number of employers in the remaining 22 states — primarily hospitals. Such employers can test applicants for nicotine use and make hiring decisions based on the results.

According to the Centers for Disease Control and Prevention, each year, smoking or exposure to secondhand smoke causes 443,000 premature deaths and costs the nation $193 billion in health bills and lost productivity.

Many of the policies banning the hiring of smokers expand on smoke-free work¬place rules. Such employers won’t hire applicants whose urine tests positive for nicotine use, whether cigarettes, smokeless tobacco or even patches.

While employers in states permitting tobacco-free hiring policies can legally refuse to hire smokers, there are practical considerations that should be addressed. It may be difficult to enforce (for instance, once hired, will you monitor employees for signs of smoking?), it may limit the pool of qualified job applicants (particularly in certain professions or age groups) and it may be resented by even nonsmokers, who see such policies as unwarranted intrusions into their off-duty conduct.

Of the states that do not permit tobacco-free hiring policies, nicotine testing is of no practical value. Some such states (including Colorado, Illinois and New York) have enacted broader laws that prevent employers from employment discrimination based on lawful, off-duty conduct.

State Smoker-Protection Laws

As of June 2014, 28 states and the District of Columbia have laws in effect elevating smokers to a protected class.

1. California 11. Mississippi 21. Oregon
2. Colorado 12. Missouri 22. Rhode Island
3. Connecticut 13. Montana 23. South Carolina
4. District of Columbia 14. Nevada 24. South Dakota
5. Illinois 15. New Hampshire 25. Tennessee
5. Illinois 15. New Hampshire 25. Tennessee
6. Indiana 16. New Jersey 26. Virginia
7. Kentucky 17. New Mexico 27. West Virginia
8. Louisiana 18. New York 28. Wisconsin
9. Maine 19. North Carolina 29. Wyoming
10. Minnesota 20. Oklahoma


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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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