PEO Horizon: A Publication of
 “No Smokers Need Apply” – Employment Discrimination Against Smokers
Federal law is silent when it comes to discrimination against employees who smoke cigarettes, cigars, or pipes at work. As a result, many companies establish policies allowing termination of employees or rejection of applicants who choose to smoke.
Is it legal for my company to discriminate against smokers?
Anti-smoking legislation is largely a product of state law and varies across jurisdictions. A majority of states protect workers against unwanted smoke in the workplace.   Beyond establishing smoke-free workplaces (nearly 75% of companies sampled either prohibited smoking in the workplace or restricted it to designated areas), employers have a near absolute right to make employment decisions based on one’s smoking habits.
Despite the undisputed right to smoke, these regulations favor the nonsmoker’s right to preserve health by avoiding secondhand smoke from co-workers. Moreover, studies show that employees who smoke are less healthy than nonsmokers, are absent more, and make more expensive claims for health and disability benefits. Therefore, local and state government policy is to discourage smoking, with the belief that discrimination against smokers will promote nonsmoking.
Is nicotine addiction a disability under the Americans with Disabilities Act? 
Courts rarely hear cases dealing with smoker’s rights under the ADA. One federal district court held that common sense dictates that smoking is not a “disability” within the meaning of the ADA: “Congress could not possibly have intended the absurd result of including smoking within the definition of “disability,” which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke.”  Brashear v. Simms, 138 F.Supp.2d 693, 695 (D. Md. 2001).
Proponents of smoker’s rights argue by analogy that if alcoholism receives treatment as a disability under the ADA, then smoking should also qualify. However, Supreme Court precedent holds that alcoholism is an impairment rather than a per se disability. A nicotine addiction, on the other hand, is remediable either by willfully quitting, or by using such over-the-counter solutions like nicotine patches or chewing gum. 
Will a smoker still try to sue me?
Generally, lawsuits brought by employees claiming discrimination at work for smoking are unsuccessful. However, anti-smoking laws include some common exceptions. Their protections may not apply to:
  • Locations of a private function, i.e. hotel banquet rooms
  • private offices occupied exclusively by smokers
  • inmates at correctional facilities and hospital patients if they are subjected to the rules of the institution
  • employers who can show that it would be financially or physically unreasonable to comply with the legal limitations
Furthermore, some states (e.g. Minnesota, Montana, South Dakota, Wisconsin and Wyoming) forbid work-related discrimination against employees on the basis of smoking, or any legal activities outside of work. Wisconsin law, for example, goes an extra step and forbids employers from discriminating against both workers who use lawful or unlawful products, such as illicit drugs.
Nonetheless, employers in these jurisdictions offering some protection to smokers are free to restrict or even prohibit smoking during working hours.   They are also free to charge smokers higher health insurance premiums.
A qualified PEO can help you design a nonsmoking policy that is tailored to your business. For more information go to