By Eric B. Meyer
Special to the Legal
Recently, The New York Times ran a story discussing how some employers are refusing to hire smokers. The article warns, "Smokers now face another risk from their habit: it could cost them a shot at a job."
But is this legal? Can an employer really refuse to hire someone who smokes?
Many states have laws prohibiting discrimination against smokers. Much to the chagrin of Nick Naylor (a character in the 2005 film, “Thank You for Smoking”), 29 states (including New Jersey) and the District of Columbia have passed laws forbidding employers from refusing to hire smokers.
Does that mean that employers in the other 21 states -- which include Pennsylvania and Delaware -- can refuse to hire (or decide to fire) all smokers? Well, just because state law doesn't forbid it, doesn't mean its legal.
The ADAAA may preclude a company from refusing to hire smokers.
Consider this: under the Americans with Disabilities Act (ADA), an employer may not discriminate against individuals with disabilities. In 2008, Congress passed the Americans with Disabilities Amendment Act (ADAAA), which effectively made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.
Additionally, the ADAAA makes it so that an employer may not take a prohibited action against an individual based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor. That is, an employer cannot discriminate against anyone it "regards as" disabled.
Given that the ADAAA construes the definition of "disability" in favor of broad coverage, under the ADAAA, smokers may be considered disabled because they may have difficulty breathing or because they have a nicotine addiction. Consider that an alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, most smokers are able to performs their essential job functions without any sort of accommodation. Therefore, a smoker who is fired may have a difficult time proving that the employer fired the smoker because s/he smoked.
But what about an employer that has a policy of refusing to hire smokers? Presumably, this policy would cut down on insurance rates because employers would, on average, be hiring healthier employees.
However, could a rejected smoker (or class of rejected smokers) argue that the employer refused to hire them because the employer "regarded them" as disabled? I would not be surprised to see that argument presented in the future.
So should employers implement smoker-free hiring policies? Good question.
Maybe hiring smokers is just a cost of doing business. Employers must ask themselves whether limiting the applicant pool to preclude smokers will save enough in health insurance rates to overcome the cost of potential lost talent (and litigation).
Eric B. Meyer is a partner in the labor and employment group at Dilworth Paxson. He also has his own labor and employment law blog, The Employer Handbook, and readers can e-mail firstname.lastname@example.org and follow him on Twitter.