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Nov 01, 2011

Where There's Smoke...

By: Paul Ebeltoft

Because of documented health risks to smokers and non-smokers alike from the effects of tobacco use, many employers have embarked upon unprecedented efforts to encourage their employees to be as healthy as possible. “Smoke free” workplaces are now common. Even so, progress toward a healthier workforce is not being made fast enough for some. Rising health insurance costs and the bottom-line effects of health-related absenteeism have caused some companies to make their workforce “smoker free.”

A majority of states prohibit an employer from discriminating against smokers. North Dakota is not one of them. How far can employer go? What is HR’s role in this escalating conflict between personal freedom and employment regulation? Sadly, there is no assurance to give in this newly evolving area of the law.

Can Current Employee-Smokers Claim Discriminatory Discharge?

The 2008 amendments to the Americans with Disabilities Act Amendments Act (ADAAA) do not directly address the issue of whether smoking is a disability. The ADAAA does, however, make it much easier for a person to prove a disability. Does this benefit smokers? Even though courts have not yet weighed in, some commentators are suggesting that this law adds a layer of job-protection for smokers.

What Should HR Do?

A safe course of action is for HR to assume that smoking is a disability under law. Engage a smoker-employee in meaningful discussions to find a way to reasonably accommodate the smoker’s particular manifestation of nicotine addiction, if the smoker is otherwise qualified to perform essential functions of the job. If you do not, a claim for discrimination on account of a disability may be possible if the smoker is discharged or disadvantaged by the employer due to his or her smoking habit.

Can You Refuse To Hire Smokers?

Taking the reach of the ADAAA one step further, commentators suggest that a smoking applicant may now be able to claim that the smoker was not hired because the employer viewed smoking as a disability. Remember that, even under the earlier ADA, an applicant cannot be discriminated against because of a perceived impairment. Thus, under prior law, an employer could not refuse to hire an otherwise qualified diabetic applicant for a truck driving position because the employer believed that diabetics cannot drive safely due to peripheral neuropathy or imbalance-induced coma. A similar argument may now be made for smoker-applicants not hired because an employer believes that the smoker less productive, for example, than non-smokers.

What Can HR Do?

Employers wishing to ban smokers from their workplace must look long and hard at the implications of doing so. Beyond the issue of excluding over 20% of the adult workforce from eligibility for employment, legal risks do exist. I admit that I have not been able to find a case where an employer, in a state like North Dakota without a specific statute, has been held liable for implementing a no-smoker-need-apply policy that is fairly administered and not guise for other types of discrimination. If you believe, as I do, that one of HR’s legitimate functions is to keep your company from being featured in the next legal headline, do not rely on this legal situation to remain constant.

Reprinted with permission from an article submitted for publication in the November 2011 Southwest Area Human Resource Association newsletter.