It’s no secret: The health hazards associated with cigarette smoking have been making headlines for years. Smoking bans have been enacted, covering all bars and restaurants in each of the 60 most populated cities in the United States.

Many large corporations and smaller businesses have followed suit by enacting policies aimed at reducing smoking, if not eliminating it altogether. Some businesses have established non-smoking zones while others, like Marriott, have placed an outright ban on smoking on company property.

In 2005, Michigan-based Weyco Inc. initiated a controversial policy of not hiring smokers. If you work in human resources, policies like Weyco’s — created with employees’ health, safety and best interests in mind — may have an effect on your company’s bottom line.

Is it legal to ban smokers?

Many states have anti-discrimination laws that protect smokers. But due to the health hazards related to smoking, smokers are not comprehensively protected. For example, smokers can be required to pay more for their company health insurance. Some localities have banned e-cigarettes at work. Non-smokers also have legal rights related to risk of exposure to smoking as well as smoking areas in the workplace.

Federal law

The federal government has passed laws protecting a great many people, including pregnant women and older workers, from discrimination in the workplace. Employers also cannot discriminate based on personal characteristics such as weight, marital status or disability.

However, there is no federal law declaring smokers as a protected class. Some states offer no legal protection for smokers, enabling employers to establish any kind of anti-smoking restrictions and policies they want without risking claims of discrimination.

Anti-smoking policies

Under federal law, employers can prohibit smoking in the workplace and anywhere on the grounds, including the outside of buildings, in parking lots and even in employees’ vehicles.

Employers can indeed refuse to hire smokers and ban employees from smoking outside of work hours — even in their own homes — under federal law. Additionally, federal law enables employers to prohibit “smoking residuals,” which means employees cannot come to work with their clothes or apparel smelling like cigarette smoke.

Smoker protection laws

Employers should research their state’s laws regarding smoking in and outside the workplace before establishing strict anti-smoking policies. In 29 states and the District of Columbia, laws that protect smokers prohibit employers enacting those policies on the grounds of discrimination.

In Pennsylvania, it is legal for an employer to ask you whether or not you are a smoker. It is legal to hire — or not hire — you based on your answer.

In other states, where it is illegal to not hire someone because they are a smoker, employers may be able to circumvent anti-discrimination laws if being a non-smoker is part of a specific job’s qualifications. For example, an anti-smoking advocacy group like the American Lung Association could choose not to hire smokers without being in violation of applicable anti-discrimination laws.

Do you have any questions about your current policy on smoking in the workplace? Ask Alternative HR.

About Kellie Boysen – Owner, Alternative HR:

Kellie Boysen is a certified Professional in Human Resources (PHR) with more than a decade of HR experience. She owns Alternative HR, a local human resource consulting and outsourcing organization that is dedicated to providing small business owners with an affordable alternative to hiring a full-time HR professional.