Can you legally refuse to hire someone who smokes?

With health-coverage costs going up, especially for high-risk employees, more and more employers are looking at put smokers on the “need not apply” list. Is it legal?
The quick answer is: It seems to be legal — so far — but that depends on what state you do business in. Consider:

  • Federal anti-discrimination laws don’t protect smokers. So the Feds’ approach is it’s up to the employer.
  • There are 16 states that do have laws prohibiting employment decisions, such as hiring, based on the tobacco habits of a candidate. (But those laws usually don’t prevent employers from making life miserable for their workers who smoke — banning smoking in the workplace or charging more for health coverage are pretty much legal.)
  • In most states, your official application can contain a question asking if the applicant smokes. You might ask that to make determinations about the cost of health coverage. What if the applicant lies by checking the “no” box on the application? You might be justified in using the lie to refuse to hire or to later fire the person if hired. Laws vary from state to state on that one.
  • At least one employer has tested the waters and refuses to hire smokers. Memorial Hospital in Chattanooga, TN, doesn’t hire new employees who use any kind of tobacco products, on or off duty. How does the hospital do it? Nicotine screenings are part of Memorial’s standard drug test for new hires.