- Sexual Orientation Discrimination
- Is Extended Leave a Reasonable Accommodation?
- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
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.