SELECT PERSPECTIVES BLOG

Is It Legal to Avoid Hiring Smokers? (And Should You?)

Posted by  Alissa Parr, Ph.D.

hiring-smokers.jpgThe objectives of most hiring processes are to identify and retain individuals who are going to be productive and efficient workers as well as those who embody the values of the organization. Organizations invest in employees. They want to see a return on their investment for individuals.

Most of the time, organizations focus on how employee performance and engagement will help them move toward that goal. However, another element that organizations may consider is how employees will create revenue for the organization and save the organization money. How, might you ask?

Recently, there has been a trend to include a question within the application process that asks about a personal habit: smoking. Organizations are using this question as a knock-out question. If people admit to smoking, they will not be hired. At first, this seems irrelevant to the job…but let’s take a closer look at this topic.

Is It Legal to Ban Smokers?

As it stands in November 2016, there is no federal law that protects smokers. The Equal Employment Opportunity Commission (EEOC) doesn’t recognize smokers as a protected class. During the hiring process, you cannot ask about drug use/addiction, but nicotine use is not included within this topic.

However, there are 28 states, along with the District of Columbia, that offer some form of protection for smokers. According to the American Lung Association, here are the states that include some form of protection:

  • California

  • Colorado

  • Connecticut

  • District of Columbia

  • Illinois

  • Indiana

  • Kentucky

  • Louisiana

  • Maine

  • Minnesota

  • Mississippi

  • Missouri

  • Montana

  • Nevada

  • New Hampshire

  • New Jersey

  • New Mexico

  • New York

  • North Carolina

  • North Dakota

  • Oklahoma

  • Oregon

  • Rhode Island

  • South Carolina

  • South Dakota

  • Tennessee

  • Virginia

  • West Virginia

  • Wisconsin

  • Wyoming

If you live in one of the above states, you cannot reject someone from the hiring process because they smoke. Alternatively, if you do not live in one of the above states and your organization has a smoke-free workplace policy in place, you can implement a smoke-free hiring policy and reject candidates who disclose smoking.

It’s important to note that similar to all knock-out questions that you use, it must be a requirement for the job or to work for the company. Meaning, the company must have established a policy requiring employees to refrain from smoking onsite. An example of how you can ask the application question is: “Our Company is a tobacco-free campus. Are you willing and able to abide by this policy?” It’s necessary to tie it back to a requirement, and not just ask them if they smoke or not.

Is it Worthwhile to Ban Smokers?

If you are located in an area that doesn’t offer protections, the next question is whether this ban results in positive outcomes for the organization. Overall, the jury is mixed. Some evidence and speculation point towards positive outcomes:

  • A 2009 study published in the Journal of Tobacco Policy & Research found that smokers took more sick days than non-smokers.

  • The same study found that even if a smoker is in good health, there’s a higher probability that he or she will have higher medical costs over a three-year period than a non-smoker.

  • Anecdotally, smokers spend more time outside of the office taking smoke breaks. (But, this isn’t to say that non-smokers don’t take breaks in other ways.)

On the flip side, there are also some points to consider that suggest not implementing this ban:

  • Regardless of a smoking habit, the individual could be a high performer. Organizations could be turning away top talent because they smoke.

  • If the decision is based on the idea to save money on insurance costs, what’s next? Would organizations look to ban people with other health-related concerns (e.g., weight, high cholesterol)? This could lead organizations to the potential for discrimination concerns.

This is a decision that each organization needs to make by weighing the positives and negatives of including this question. It’s important to consider your state laws as well as to determine whether you think this exclusion will work toward achieving the hiring goals of selecting productive and efficient workers who fit within the company culture. If you choose to pursue such a hiring policy, we advise that you consult legal counsel prior to implementing, given moving legislation in this area.

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Tags:   hiring process, EEOC, legally defensible

Alissa Parr, Ph.D.

Alissa is a Consulting Manager at Select International. Her areas of expertise include the development, implementation, and evaluation of assessment processes. Alissa has experience managing entry-level through executive level assessment and selection efforts across a number of different industries including government, financial, military, education, healthcare, and manufacturing.

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