Quirky Question # 172: Our company recently adopted a policy of not employing cigarette smokers. We decided to adopt the policy to (1) reduce health our care costs and (2) set a positive example given our business’s relation to health. We now have two problems. One applicant admitted that he smoked during his interview and we did not hire him. He now claims he’s going to sue us. Do we have anything to worry about? What claims could he bring?

Also, we recently caught a current employee smoking in our parking garage, in violation of our work rule against smoking on company property. Can we terminate her employment?

Ben’s Analysis: You are not alone in implementing a policy against employing smokers. A recent New York Times article, http://www.nytimes.com/2011/02/11/us/11smoking.html?_r=1&scp=3&sq=smoker&st=cse, notes that “[m]ore hospitals and medical businesses in many states are adopting strict policies that make smoking a reason to turn away job applicants, saying they want to increase worker productivity, reduce health care costs and encourage healthier living.” Employers need to be aware, however, that there are potential litigation risks that come with such policies. Many states have passed some sort of “lawful consumable products” statute — laws that protect employees from adverse employment actions based on certain lawful conduct outside of work time and off work premises. Importantly, this lawful conduct includes cigarette smoking.

Lawful Consumable Products Statutes

Twenty-nine states and the District of Columbia have enacted statutes giving some protections to employees who smoke. (See, Cal. Labor Code §§ 96(k), 98.6 (California); Colo. Rev. Stat § 24-34-402.5 (Colorado); Conn. Gen. Stat. § 31-40s (Connecticut); D.C. Code § 7-1703.03 (District of Columbia); 820 Ill. Comp. Stat. 55/5 (Illinois); Ind. Code § 22-5-4 (Indiana); Ky. Rev. Stat. Ann. § 344.040 (Kentucky); La. Rev. Stat. Ann. § 23:966 (Louisiana); Me. Rev. Stat. tit. 26, § 597 (Maine); Minn. Stat. § 181.938 (Minnesota); Miss. Code Ann. § 71-7-33 (Mississippi); Mo. Rev. Stat. § 290.145 (Missouri); Mont. Code Ann. §§ 39-2-313, 39-2-314 (Montana); Nev. Rev. Stat. § 613.333 (Nevada); N.H. Rev. Stat. Ann. § 275:37-a (New Hampshire); N.J. Stat. Ann. § 34:6B (New Jersey); N.M. Stat. Ann. § 50-11-3 (New Mexico); N.Y. Lab. Law § 201-d (New York); N.C. Gen. Stat. § 95-28.2 (North Carolina); N.D. Cent. Code §§ 14-02.4 (North Dakota); Okla. Stat. tit. 40, § 500 (Oklahoma); Or. Rev. Stat. §§ 659A.315, 659A.885 (Oregon); R.I. Gen. Laws § 23-20.10-14 (Rhode Island); S.C. Code Ann. § 41-1-85 (South Carolina); S.D. Codified Laws § 60-4-11 (South Dakota); Tenn. Code Ann. § 50-1-304 (Tennessee); Va. Code Ann. § 2.2-2902 (Virginia); W. Va. Code § 21-3-19 (West Virginia); Wis. Stat. § 111.31 (Wisconsin); Wyo. Stat. Ann. § 27-9 (Wyoming).)

These statutes vary in what protections they afford, exceptions they include, and in the remedies available to employees, and an employer will need to look to the statute in force in its state to assess its particular litigation risks.

All of the relevant statutes, however, allow employers to enforce work rules banning smoking on company property or company time. See, e.g., Colo. Rev. Stat § 24-34-402.5. In other words, an employer in any state may lawfully terminate, or otherwise discipline, an employee who violates an employer’s rule against smoking on its premises or during work time.

Some statutes protect only current employees who smoke. See, e.g., S.D. Codified Laws § 60-4-11. In jurisdictions with these types of statutes, an employer can lawfully refuse to hire smokers, but cannot discriminate against current employees who smoke off company property on their own time.

Other state statutes are quite broad and prohibit discrimination against smokers even in the hiring process. See, e.g., N.C. Gen. Stat. § 95-28.2 (“It is an unlawful employment practice for an employer to fail or refuse to hire a prospective employee . . . because the prospective employee . . . engages in or has engaged in the lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours and does not adversely affect the employee’s job performance or the person’s ability to properly fulfill the responsibilities of the position . . . .”). Employers subject to such statutes may face lawsuits if they refuse to hire smokers. As a practical matter, though, this appears somewhat unlikely.

My research did not reveal a single reported case of a smoker suing an employer for anti-smoking discrimination. This is not particularly surprising as this type of case may not be appealing to many plaintiffs’ lawyers — a complaining smoker does not make a particularly sympathetic plaintiff. That said, policies against employing smokers are a relatively new phenomenon, and we may begin to see lawsuits related to such policies in the near future.

The important takeaway for employers is to examine the relevant statute in their state or states of operation (if such a statute exists at all, remember 31 states have no lawful consumable products statutes at all) and tailor their policies accordingly. Perhaps an all out ban on employing smokers is not the best option. Employers may want consider alternatives. For example, if you ban smoking anywhere on your premises, it may be quite difficult for an employee to smoke at all during the work day, which may be the added incentive necessary for your employees to quit smoking. Also, a number of the relevant statutes expressly allow employers to charge smokers higher insurance rates than non-smokers, which may go a long way to reducing insurance costs related to smoking.