Human Resources News & Insights

Companies stop hiring smokers: Is that legal?

In an effort to lower health care costs, some companies are refusing to hire smokers. HR’s big question: Is that legal?

Answer: It depends where you are.

There’s no federal law banning “tobacco discrimination,” but that doesn’t mean the states are OK with it. For example, Connecticut has a law explicitly granting smokers’ rights.

It says: “No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment.”

Also, a few states (California and New York, for example) have laws against making employment decisions based on people’s legal, off-duty activities.

What’s it mean for HR? If your company’s thinking about putting the kibosh on employee tobacco use, make sure you check your state and local laws first — or, some experts say, think about helping employees kick the habit, rather than getting rid of them.

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  • Anissa

    I find this very interesting… We are a company in South Eastern PA, employ 40 people and we do not have to fill out the health questionnaire on our Health Ins. forms due to our location. We have high rates due to our demographics, I wonder if they would be higher if we were required to tell how many smokers we have. But if we don’t have to fill anything out because of location, how can Insurance companys charge more for smokers – it just seem inconsistant!

  • Bob

    I think comparing nicotine addiction to an implied illegal drug addiction is a little harsh. Nicotine, right or wrong, is legal. If companies are looking solely at saving medical expenses then I have to go with the train of thought “what is next..?”. It is sad to think that employers may be passing up hard working assets because of what might be a medical expense in the future. My father turned 81 this month and still smokes about a pack a day. My Uncle retired at age 78 and smoked until he died last year at age 84. Yes I am a smoker also. Trying to determine who is going to be a drain on your medical expenses and who isnt is about like going to the casino. Sooner or later your going to have to pay no matter what game it is. Why not regulate hospital and doctor fees? I think the majority of people really dont care if they have a 48″ flat screen with cable in their room, or an expensive art collection on the hallway walls. Hospital advertisements are filling the media also adding to the cost of medical expenses.

  • Stacy, PHR

    I think this is absolutely ridiculous. High health care costs can be attributed to so many different casues not just smoking. Should we then stop hiring those who are obese because as we all know, obesity is known to cause heart disease and diabetes (just to name a few). Smoking is legal just as drinking alcohol. Should we stop hiring individuals who have a glass of wine at dinner because they may one day become alcoholics or suffer from liver disease.
    I’d also like to touch on many comments I hear that smokers are lazy and are subpar performers. This is silly to say the least and is a complete generalization. Yes I’m sure there are many smokers who don’t meet their employers expectations, but on the same token there are many smokers who exceed expectations consistently and are anything but lazy. Obviously If you can’t tell I am a smoker – I’m a top performer and anything but lazy.

  • Andrea Cavanaug

    Discrimination in our country is ALIVE and WELL and it should be illegal, we create laws in this country and we cannot prove or inforce them.

    We are losing our freedom, it is now recommended that you google yourself to see what an employer might find out about you.

    Is it even safe to assume free speech and posting to a site like this your opinions? It could lose you a job and your American Dream.

    I could write a book on this topic I just can’t believe they are allowing this type of discrimination in hiring to happen. Many think it is only a smoking issue and smoking is bad so it is good thing. Personally I can’t wait to see what other types of discrimination evolve. I wonder as the poster above stated smokers are lazy and subpar. Do you suppose all the people in this nation who are dependent on Anit Depression medication are lazy and supar. The healthcare community is handing out anti-depressants like candy, and if your child has a lot of energy and you can stand it just load them up on legal drugs.

  • Jan Brown

    I do not believe I would accept a position with a company that tried to control my legal non-work-related activities while I am away from the workplace. This is a much larger issue than the current ‘buzz topic’ of smoking.

  • Sandy

    Is it illegal in any state to not provide smoking area’s on company property? If not, then in hiring an individual it should be stated that the company does not allow smoking on their property. Employees should refrain from smoking while on company property. This would give the prospective employee an opportunity to not accept the position.

    I personally am disgusted when I walk into a business establishment and have to breath the second hand smoke from employees that just step out the door to smoke. I believe that is against the law just as much as it is against the law to smoke indoors, but smokers refuse to follow that law and it is not being enforced.

  • Andrea Cavanaug


    It is a good thing or hopefully you don’t work in health care, because then poor girl you would be exposed to a great deal of foul smells wonder how those hard working dedicated nurses handle it.

    Maybe they are just strong people, not ultrasensitive – THANK GOD!

  • Let’s be realistic. Roughly 21% of the US population smokes cigarettes according to recent research. Tobacco use is legal for the simple reason that it has always been legal. Like sugar, it would have no hope of being brought to market legally if it was discovered today. What are the facts about tobacco use that might make a company want to think twice about hiring a smoker, or giving preference in hiring to non-smokers. First, many organizations are self-insured. That means they pay their own healthcare costs. If you are paying the freight and you know that, on average, a smoker is going to cost you over twice as much as a non smoker, aren’t you going to give preference to the non-smoker whenever legally possible? Additionally, smoking is prima facia evidence fo poor judgement. It is well known that smoking is harmful–every cigarette pack sold in the US reminds us of that, and the Phillip Morris USA website acknowledges that cigarettes harm health. Therefore in jobs where sound judgement is called for smokers may be questionable hires. Third, smoking diminishes mental capacity, partly due to the presence of cadmium and other ingredients, and partly due to oxygen deprivation. If you talk to smokers about why they smoke, listen as they try to give a coherent answer. The really sad thing is that Tobacco executives make in the tens of millions of dollars to lead companies that produce a product that when used as directed shortens the life, diminishes the health of those that use it. There is a legitimate moral question here.

  • Otilio

    I would never hire a smoker. We have a smoker at my company now. He’s a decent enough guy and a hard, intelligent, worker. but he SMELLS! You can smell him the moment he walks into the office in the morning and having meetings with him is torture. We constantly bust his chops about it but it changes nothing.

    He also takes numerous smoke breaks throughout the day. He usually makes up the time, so that isn’t the issue, but what is very annoying is when you need something from him hes not there because hes on yet another smoke break.