HR Soapbox Blog

Smokers Need Not Apply

(Published November 16, 2009)

The Great American Smokeout^® challenges people to stop using tobacco products the third Thursday of every November (the 19th this year) with the hope that one day they will quit completely. Some employers are relying on more than just hope in their quest for a smoke-free workforce; they're refusing to hire anyone who smokes — on or off duty.

Penalizing an applicant for lawful off-duty behavior might seem extreme, but outside of states that prohibit discrimination against individuals based on their use of tobacco products (or otherwise prohibit discrimination based on lawful lifestyle choices), it's a perfectly legal practice.

My dad smoked a pack a day for more than 40 years. He only quit (most unwillingly!) after being diagnosed with COPD (chronic obstructive pulmonary disease). My dad is now retired, but I wonder how he would have responded to being passed over for a job because he was a smoker. Would it have motivated him to quit smoking? Maybe, if he was in dire need of a job to put food on the table and economic conditions were such that jobs were few and far between. Absent that, though, I seriously doubt it. He would have just applied elsewhere. But I guess the point of refusing to hire smokers isn't necessarily to motivate them to quit, it's most often to lower the employer's health benefits costs.

In this economy, I can't blame a company for wanting to reduce expenses any way it can. While refusing to hire smokers isn't necessarily the way I would go about it if I was a CEO, the reality is that more and more CEOs are electing to maintain a smoker-free workforce.

In such cases, I think it's imperative that the company communicates to applicants, in no uncertain terms, that it is company policy not to hire tobacco users, and that job offers are contingent on passing a nicotine test. This shouldn't come as a surprise after the applicant has already been through countless rounds of interviews. Why waste the applicant's (and the company's!) time?

Plus, if the company goes so far as to require current employees to also abstain from smoking on and off duty, it should give them adequate time and resources to kick the habit. According to the American Cancer Society (ACS), all states run some type of free telephone-based tobacco-cessation support program. The ACS's Quitline^® tobacco cessation program links callers with trained counselors. There are also numerous support groups across the country. For assistance in gathering information about resources in your area, call the ACS at 1-800-ACS-2345 (1-800-227-2345).

Melissa V. Pomerantz
Editor

Posted by Editorial at 11/13/2009 1:52 PM

I have also heard rumblings about a "fat tax" where junk food actually has a special tax attached to it. So, the next leap would be employers who do not want to hire overweight people for the same associated health risks and costs. Some will argue that smoking is a choice, but in MOST cases, so is being fat (and certainly the food that you eat is a choice). Obesity kills more people and causes more heath issues than smoking ... (likely because there are more overweight folks than smokers) ... but nonetheless, a major and expensive problem for employers. This of course leads us down a myriad of other roads. Employers really need to just stick to hiring qualified applicants and they can provide assistance and education in lifestyle choices ... not discriminating based on them. If they do,where will they draw the line? I would hate to try and defend this in a court ... a qualified (and perhaps diverse) applicant denied employment due to legal lifestyle choices. Good luck with that!
Posted by: JB at 11/18/2009 8:30 AM

All anyone ever talks about is the cost to employers. Well, guess what? As employees we still foot a lot of the cost as well. And we aren't the ones making the 6 & 7 figure incomes that the top dogs do either. And every year it seems that we end up paying more out of our pockets, while the Federal government & employers take more. As for the issue of smoking, anyone who dares to discriminate against anyone for anything can and will be (eventually) brought into court for it, one way or the other. Smoking or being overweight, whether by choice or not, is NOT a legal standing in a court of law to deny a person a job. Especially now, when they are so hard to find. It's a bad as someone saying I have to be bilingual! This is America still isn't it?
Posted by: TexasRose at 11/18/2009 9:51 AM

Obesity has far more healthcare costs than smoking so I believe employers should look into the need to reduce obesity in the workplace more so.
Posted by: Valerie at 11/18/2009 11:13 AM

This is ridiculous. If companies discriminate against smokers to curb healthcare costs, they will also have to stop hiring the overweight, those who drive over the speed limit, don't wear seat belts, and those who don't wear sunblock--just a few of the long list of not-so-healthy choices people make. I agree with JB's comment. Employers are expected to bend over backwards to not discriminate against alcoholics and drug addicts, but smokers can't even be hired?
Posted by: Tanya at 11/18/2009 11:15 AM

Yep, TexasRose, it's still America. And we all have a right to make choices. Employers can choose who they want to hire and employees can chose who they want to work for. If an employer doesn't want to hire a smoker who takes 15 minute breaks every hour and brings the smell of smoke into the office, and calls out sick more often than a non-smoker, that is the employers choice. If an employee wants to work for that particular company, then they can make a decision: quit smoking or find another company to work for. It's all about choice. Thank heavens we are in America where we have choices.
Posted by: Office Manager at 11/18/2009 11:21 AM

Lets face it, being overweight is just as bad as smoking. The heavy person hurts just them. smokers on the other hand are reeking with smoke from their clothing, breath, and hair which subjects the non-smokers to third hand smoke. If you haven't read about third hand smoke, I urge you to do so.
Posted by: Betty Corp at 11/18/2009 11:24 AM

Definitely agree with the comments about obesity and other health risks as well as the discrimination issues that all of these bring. Then, good point Tanya, about NOT discriminating against alcoholics and drug addicts!
We need to get back to the business of business. Hire the first qualified candidate in the door who has the correct attitude and demeanor to work with the current staff!
Posted by: Fran at 11/18/2009 11:26 AM

Smoking, obesity, driving record with many speeding ticket, drunken Facebook profile picture with beer in hand... it all underscores one's level of self respect, responsibility and dedication to oneself and others. In some occupations, it is easier to separate one's personal life from one's work. In others, not so much.
Posted by: HR at 11/18/2009 11:36 AM

It may come as a surprise to many that insurance companies are already choosing not to cover injuries related to risky activities such as flying planes, sky diving, and ATV riding. Employers choosing not to hire individuals involved in risky activities isn't much different. I agree with Office Manager; both the employer and the applicant/employee has a choice. There are channels that smokers as a group can take to attempt to attain protected status; that's how sexual orientation became added to the protected classification listing. Oh, by the way, alcoholics and drug addits are not protected if they are currently engaging in such behavior.
Posted by: Sandra at 11/18/2009 11:36 AM

I worked for a small employer who would not hire a smoker. It had nothing to do with healthcare cost. It was simply because of the smell of smoke on hair, hands, clothes, etc. that is assaulting to all others in the office. Also, the need for a smoker to take smoking breaks continuously throughout the day. If someone in the office has an hygiene issues, or wears too much perfume nobody has a problem with them being spoken to about this.
Posted by: Angela at 11/18/2009 11:42 AM

A lot of good points here on both sides. Texas Rose, I agree with you 100%.

I also think that employers have every right to declare their premises smoke-free. And I don't think that employers should have to accommodate smokers with smoke breaks or smoking areas. And if they only want to offer healthy foods in their vending machines or cafeterias, that's fine too. But asdiscrimination of any kind is just plain wrong. But I also think that discrimination of any kind is just plain wrong. And sorry, but refusing to hire on the sole basis of tobacco use is discriminatory.

I think we're heading down a very scary road when employers are permitted to dictate what (legal)behavior is acceptable off duty and offsite.
Posted by: TJ at 11/18/2009 12:05 PM

In response to Office Manager's description of a smoker taking 15 minute breaks every hour and calling in sick repeatedly - that's just a stereotype and that kind of behavior does not have to be allowed. I think you could explain to applicants that they get two breaks per day plus lunch and are not allowed to take extra smoke breaks. A chain smoker might not want to work for your company if they know they can only smoke three times during the day. If someone is abusing the sick leave policy, whether a smoker or non-smoker, that's a performance issue to be addressed. We have smokers who work for us who smoke on their breaks only. They do not call in sick any more often than other employees. They are valued employees. I'm in a state (Oregon) that prohibits hiring discrimination against smokers - but we also have laws against smoking within 10 feet of a public building entrance and smoking is not allowed in restaurants, bars or other public facilities, so smoking is being discouraged.
Posted by: Sharon at 11/18/2009 12:10 PM

TJ - Yes, making hiring decisions based on tobacco use is discriminatory. So is making hiring decisions based on years of experience, education, etc. I am "discriminating" by choosing the applicant with 5 years of experience and a 4-year degree rather than the applicant with 1 year of experience and a high school diploma. It is a business decision, and perfectly legal, just like not hiring smokers.

Smokers don't just effect health care costs (for both companies and employees). They are also absent more often, leaving others to pick up the slack.

TexasRose-"Smoking or being overweight, whether by choice or not, is NOT a legal standing in a court of law to deny a person a job." As the article points out, except for in certain states, it IS legal standing. It is a business decision, and smokers are NOT protected classes (like race, gender, etc.). And if a company needs someone that is bilingual for a job that is required to communicate with customers who speak a language other than English, they absolutely should require it. How else can you perform the job? Turn away all non-English speaking customers?
Posted by: HRM at 11/18/2009 12:21 PM

Yes we all make choices in life that not everyone will understand or agree with. I long for the days when people lived their life and didn't try to live everyone else's life for them. I don't care if you are obese, if you smoke, if you are a speed demon on the road, etc - I only care if you interfere with my right as a citizen of a free country to make my own life choices. It is my life not yours. None of us have the right to judge another person - unless you want to be judged yourself with the same harshness you are judging others. When I hire an employee (I am a business owner) - my main concern is do they have the "real" experience needed to perform their job, will they be dependable, and do they have the ability to move up in the company. What they do outside of business hours does not concern me unless it affects their work when they are on the job. Really good employees are worth their weight in gold!!
Posted by: Vickie at 11/18/2009 1:39 PM

Thirty states & DC have made it illegal to discriminate in hiring based on off-duty smoking. That's a majority.

NY has additional legal behaviors covered too. CA & CT prohibit discrimination based on all legal behavior.

Last I heard, morbid obesity is protected by ADA.

Apparently the insurance companies can do whatever they want--but not for long.
Posted by: Paddy at 11/18/2009 1:50 PM

All I read is about the negatives of behavior modification. How about some positive reinforcements? Why don't more companies offer free Weight Watchers sessions? How about offering a 10% DECREASE in health premiums for someone who quits smoking and remains smoke free?
How about a free annual physical and blood work to encourage people to get checked out?
Many employers TALK about staying healthy, but they won't offer free mamograms or blood screenings. If all companies did this, we would all be better off (even incrementally), and we wouldn't need the government trying (and most likely failing) at health care reform.
Posted by: Joe at 11/18/2009 3:05 PM

It amazes me that many of the same people who would encourage a lawuit against a restaruant who only hires females on certain qualities such as weight or relative attractiveness--becuase the business's position is that customers are there because of the atmosphere--are really on here promoting and defending discrimination on someone's LEGAL behavior outside of work. How about someone that drinks caffeinated beverages? Or eats a cheeseburger and smells like a BBQ when they walk in? Or eats curry? All can be "offensive" to someone--and that's crux of the problem. We spend way too much time, money, and effort catering to the 20% who will never be happy, many of whom lack the self-confidence or self-esteem to look at someone who is different than them as individuals. And to compensate and fulfill those needs, all because their momma didn't love them enough, they instead have to find ways to denigrate others as being "lesser beings" than them.

Get real, people. The beauty of freedom is that you can offend anyone you like as long as it creates no harm or is threatening. Same goes with harming yourself in whatever way pleases you, as long as you stay within the legal boundaries.

Yes, you're free as an employer to choose and hire whomever you like, but to set POLICY based upon any type of discriminatory measures rather than qualifications, skills, and abilities is the antihesis of what most of you are supposed to be promoting in your company: non-discriminatory practices and bringing the best employees possible into the company.

I sure hope that someday people grow up so that we can start managing business instead of having to be camp counselors 24/7.
Posted by: PABob at 11/18/2009 3:19 PM

I have to disagree with those of you that think smokers are just like the rest of us. We have several smokers and they DO call in sick more than the rest of their department, they DO come back in from their multiple "mini" breaks (5-10 min.) smelling like a smoke stack and choking everyone they pass. They are also some of our best workers (when they are at their desks that is) they are also the nicest people to work WITH. So, you must weigh ALL of the issues Good and Bad. And just so you know I would much rather have the smoker worker that does their best than the nonsmoker worker that doesn't get everything done.
Posted by: TN at 11/18/2009 5:25 PM

I am a smoker and I have tried to quit smoking multiple times. I was raised in a family of smokers and it seemed to be the "
thing" to do, well 20+ years later... My company health insurance does NOT provide any assistance with Smoking Cessation which I believe it should (it does offer benefits fo obesity); I have requested this but... I only take 3 breaks a day, one is lunch and I do not go out multiple times to smoke. I am being paid to work, breaks are at a designated time and that is when I go. If a company allows smokers to take multiple breaks then they need to modify their break policy and not allow multiple breaks and enforce that policy.
Posted by: KM at 11/19/2009 9:19 AM

Good Lord, if its legal then employers shouldn't discriminate on hiring, of course no smoking on company property is acceptable to me, a smoker, but a considerate smoker. But I can't stomach obese people can I NOT hire them because they are REALLY REALLY F A T?!
Posted by: KC at 12/1/2009 11:46 AM

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Smokers Need Not Apply