Legal Update: Smoke Signals

Is smoking the new frontier for EEO actions? Hospitals and other health institutions (the National Institutes for Health in the Washington metro area comes to mind) proclaim that they are smoke-free. Some employers are going a step further and have become smoker-free. The reason is that these employers, regardless of their business, have a stake in keeping health benefit costs down. Having healthy workers would help achieve that goal, and smoking is unhealthy.

Under federal law smokers are not a protected class. But does smoking implicate protected classes? Smoking itself is an activity, not a disability. Nicotine addiction might be an impairment, but it may or may not be a disability under federal law. Another angle is whether smokers tend to be more prevalent in some race/ethnic groups. The Centers for Disease Control issued a report last year indicating that smoking rates varied by industry, but did not go into demographics.

If an employer wants to ban smokers, would testing for nicotine be an unlawful medical examination? It‘s one of many issues to consider. On the state level, according to Pfeifer (2012), there are 17 states that allow smokers to be banned. But there are also a number of states (such as Wisconsin) that have “lawful product” statutes that prohibit an employer from not refusing employment to those using a product lawfully available in the state.

Reference: Pfeifer, R. (2012, January 31). Employer smoking bans debated, but Wisconsin‘s protection of smoking employees remains. Lexology. Retrieved at

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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