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 www.lexology.com/library.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.