Smokers' Rights Laws Easily Evaded, says AMA and ASH

Companies Seek to Save $12,000 Per Employee Per Year in Excess Costs

Companies seeking to save thousands in health and related costs on each employee per year by hiring only nonsmokers are often mistakenly deterred by the existence of so-called "smokers' rights" laws in effect in about 30 states. [SEE COMPLETE LIST BELOW]

This total cost averages $12,000 a year per smoker, according to a court which heard testimony under oath in a case in which ASH was involved, and which ruled that the plan was perfectly legal.

But many of the laws are toothless and easily avoided, notes the both the AMA and law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH), which has successfully defended the right of employers to have a smoke-free work force.

LOOPHOLES IN MANY STATUTES

The AMA's American Medical News has pointed out that, even if state laws prohibit employers from refusing to hire smokers, no law requires companies to provide any smoking breaks, nor to permit smoking on the company's property, even outdoors, in cars in parking lots, etc. 

Thus, as a practical matter, not permitting smoking breaks, and banning smoking anywhere on company property (even inside cars), will probably deter all but the most determined smokers.  News From The American Medical Association [AMA]

Another approach, which has been used successfully for many years in New Hampshire (which has a smokers' rights law) is to simply prohibit anyone from coming onto the property who has any detectable odor of tobacco residue (sometimes called "thirdhand tobacco smoke") about him.

Unless a smoker is willing to bathe, change clothing, and use mouthwash after each cigarette, he probably cannot meet this requirement and need not be hired or employed, despite the law. Employer's Right Not to Hire Smokers Upheld

Also, many of the smokers' rights laws provide only very limited protection.  Some, for example, only prohibit companies from making "no smoking" a condition of employment, and do not prohibit paying smokers less, providing them with fewer benefits, etc.

Indeed, some states specifically permit companies to charge smokers more for insurance. These are noted in the list of statute below.

Also, some smoker statutes apply only to state employees, leaving private companies free to not hire smokers.  This limitation is also noted in the list below.

Other statutes apply to and protect only current employees, permitting companies to adopt a "no smokers" policy for future hires, an option which might be especially attractive now with so many very qualified unemployed workers competing for a limited number of positions.

VIRTUALLY NO ENFORCEMENT

It appears that even the statutes which seem to provide significant protection are rarely if even enforced. One reason for this, speculates law professor John Banzhaf, is that the monetary damages authorized by the statutes in many situations are so small that lawyers are unlikely to take on the cases and represent the smokers.

Finally, while a growing number of companies are openly announcing their policy of refusing to employ workers who smoke (even off the job), and some are even backing it up with testing to insure compliance, anecdotal evidence suggests that many more companies are simply -- without any written policy -- declining to hire smokers for all or for most positions, or at least giving strong preference in hiring to nonsmokers.

SMOKE-FREE WORKFORCES AND THE LAW

Courts have repeatedly held that it is not unconstitutional for governmental employers to refuse to hire smokers, and that there is no legally protected right to smoke, either on or off the job.

Indeed, except where limited by smokers' rights statutes, both public and private employers may decline to hire smokers, since conventional civil rights laws prohibiting discrimination based on factors like race or gender (so called “immutable characteristics”) do not apply to smokers, nor does the Americans With Disabilities Act [ADA].

One reason is that, unlike prohibiting discrimination based upon characteristics like race, religion, gender, etc., smoking is an activity rather than an immutable characteristic. People cannot change their race or gender, but they can quit smoking, as tens of millions of former smokers have.

Also, the need to save many thousands of dollars every year in health care, disability, absenteeism, and other costs provides a perfectly rational basis for insisting on a smoke-free work force (like a drug-free workforce), a rationale almost always absent in discrimination based upon race or gender.

RATIONALE AND JUSTIFICATION FOR A SMOKE-FREE WORKFORCE

Under our free enterprise system, the companies which create the jobs are largely free to set the employment criteria. The marketplace then determines if the decision is a wise one – something which is obviously happening, since more and more firms now hire only nonsmokers, either openly or without any public announcement.

Many firms in fact restrict what employees can do off the job if they believe their actions will adversely affect the company. Major media organizations, for example, frequently prohibit their employees –  even in their off hours –  from going on junkets or accepting valuable gifts , or even participating in demonstrations about controversial issues like abortion -- even though the latter involves freedom of speech. 

Professors are often prohibited from teaching at other universities, even for free and on their own time.  And, of course, pilots and train operators may not drink alcohol on their free time just before coming on duty, and police and military officers are limited in what they can eat off the job, and how slothful they can be, by requirements that they maintain a certain weight and level of physical fitness.

ASH suggests that any company which hires smokers and does not at least charge them more for health insurance is unfairly forcing the great majority of fellow employees who have wisely chosen not to smoke to bear the enormous costs of the co-workers’ smoking. That's because the money the company is forced to spend on treating the many diseases caused unnecessary by smoking could be used to provide more health benefits for all workers, increases in salary, etc.

WHAT ABOUT OTHER HEALTH-RELATED RESTRICTIONS

Critics have argued that firms declining to hire smokers, something which has now been done for more than thirty years, is likely to spread to other activities which might increase health care costs, such a overeating, eating meat, skiing, etc. 

But the federal government has already classified being obese as a “disease” or a “health status” which enjoys legal protection; unlike smoking which, as a mere “behavior,” enjoys no such protection.  This would obviously limit the ability of any company not to hire people who are obese.
Moreover, one can give up smoking in a short period of time to become eligible for a job, whereas ceasing to be obese is almost always a much longer process.

Perhaps all of this is one reason why so many companies decline to hire smokers (but not the obese, or meat eaters, etc.); why virtually all life insurance companies, and a growing number of health insurance companies (as well as states), charge smokers (but not the obese) more for their health insurance, and why there appear to be no companies which refuse to hire prospects who eat meat, drink alcoholic beverages, ski or sky dive, drive motorcycles, or engage in other activities which are sometimes said to increase the risk of disease or injury. 

The costs of smoking to the American economy are almost $200 billion a year, most of which nonsmokers are forced to pay in the form of higher taxes (for smoking-related diseases treated under Medicare, Medicaid, veterans’ benefits, Indian benefits, as well a disability) and inflated health insurance premiums.  None of these other activities – or, indeed, even all of them together – even comes close in its cost and adverse economic impact.

BELOW ASH HAS LISTED THE TEXT OF ALL OF THE SO-CALLED "SMOKERS' RIGHTS LAWS." 
IN MANY CASES SOME OF THE OBVIOUS LIMITATIONS HAVE BEEN NOTED IN BOLDFACE.



CALIFORNIA: CA LABOR CODE § 96(k) & 98.6

§ 96. Assignment of claims and liens
The Labor Commissioner and his or her deputies and representatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, or an employee representative authorized in writing by an employee, with the Labor Commissioner, take assignments of:
(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises.


COLORADO: CO REV. STAT. ANN § 24-34-402.5 [CURRENT EMPLOYEES ONLY]

24-34-402.5. Unlawful prohibition of legal activities as a condition of employment
(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:
(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
(2) (a) Notwithstanding any other provisions of this article, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: He or she may bring a civil action for damages in any district court of competent jurisdiction and may sue for all wages and benefits that would have been due him or her up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred; except that nothing in this section shall be construed to relieve the person from the obligation to mitigate his or her damages.
(b) (I) If the prevailing party in the civil action is the plaintiff, the court shall award the plaintiff court costs and a reasonable attorney fee.
(II) This paragraph (b) shall not apply to an employee of a business that has or had fifteen or fewer employees during each of twenty or more calendar work weeks in the current or preceding calendar year.


CONNECTICUT: CT GEN. STAT. ANN. § 31-40s

Sec. 31-40s. Smoking or use of tobacco products outside of the workplace.
(a) No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

(b) Nothing contained in this section shall be construed to affect (1) the provisions of section 31-40q, (2) municipal hiring practices involving paid firefighters and paid police officers, and (3) any collective bargaining agreement between a municipality and paid firefighters or paid police officers.


DISTRICT OF COLUMBIA: D.C. CODE ANN. § 7-1703.03

Prohibition of employment discrimination on the basis of tobacco use [Formerly § 6-913.3]  (a) No person shall refuse to hire or employ any applicant for employment, or discharge or otherwise discriminate against any employee with respect to compensation or any other term, condition, or privilege of employment, on the basis of the use by the applicant or employee of tobacco or tobacco products.   Nothing in this section shall be construed as limiting a person from establishing or enforcing workplace smoking restrictions that are required or permitted by this subchapter or other District or federal laws, or in establishing tobacco-use restrictions or prohibitions that constitute bona fide occupational qualifications.


ILLINOIS: 820 ILL. COMP. STAT. 55/5 [INSURANCE DIFFERENTIALS OK]

§ 820 ILCS 55/5. Discrimination for use of lawful products prohibited
Sec. 5. Discrimination for use of lawful products prohibited. (a) Except as otherwise specifically provided by law and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.
(b) This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. This Section does not apply to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties.
(c) It is not a violation of this Section for an employer to offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products provided that:
(1) differential premium rates charged employees reflect a differential cost to the employer; and
(2) employers provide employees with a statement delineating the differential rates used by insurance carriers.


INDIANA: IND. CODE §§ 22-5-4-1 et seq.

22-5-4-1. Employment or discrimination based on employee's off duty use of tobacco prohibited.(a) Except as provided in subsection (b), an employer may not:
(1) require, as a condition of employment, an employee or prospective employee to refrain from using; or

(2) discriminate against an employee with respect to:
(A) the employee's compensation and benefits; or
(B) terms and conditions of employment;
based on the employee's use of;
tobacco products outside the course of the employee's or prospective employee's employment.
(b) An employer may implement financial incentives:
(1) intended to reduce tobacco use; and
(2) related to employee health benefits provided by the employer.


KENTUCKY: KY REV. STAT. ANN. § 344.040

344.040. Discrimination by employers.
It is an unlawful practice for an employer:
(1) To fail or refuse to hire, or to discharge any individual, or otherwise to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of the individual's race, color, religion, national origin, sex, age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking;
(2) To limit, segregate, or classify employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect status as an employee, because of the individual's race, color, religion, national origin, sex, or age forty (40) and over, because the person is a qualified individual with a disability, or because the individual is a smoker or nonsmoker, as long as the person complies with any workplace policy concerning smoking; or
(3) To require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.


LOUISIANA: LA REV. STAT. ANN. § 23:966 [CURRENT EMPLOYEES ONLY]

§ 23:966. Prohibition of smoking discrimination
A. As long as an individual, during the course of employment, complies with applicable law and any adopted workplace policy regulating smoking, it shall be unlawful for an employer:
(1) To discriminate against the individual with respect to discharge, compensation, promotion, any personnel action or other condition, or privilege of employment because the individual is a smoker or nonsmoker.
(2) To require, as a condition of employment, that the individual abstain from smoking or otherwise using tobacco products outside the course of employment.
B. A smoker, as referred to herein, is limited to a person who smokes tobacco.
C. Nothing in this Section shall preclude an employer from formulating and adopting a policy regulating an employee's workplace use of a tobacco product or from taking any action consistent therewith.
D. Any employer who violates the provisions of this Section shall be fined up to two hundred fifty dollars for the first offense and up to five hundred dollars for any subsequent offense.


MAINE: ME REV. STAT. ANN. tit. 26, § 597

§ 597. Conditions of employment
An employer or an agent of an employer may not require, as a condition of employment, that any employee or prospective employee refrain from using tobacco products outside the course of that employment or otherwise discriminate against any person with respect to the person's compensation, terms, conditions or privileges of employment for using tobacco products outside the course of employment as long as the employee complies with any workplace policy concerning use of tobacco.


MINNESOTA: MINN. STAT. § 181.938

181.938 NONWORK ACTIVITIES; PROHIBITED EMPLOYER CONDUCT [INSURANCE DIFFERENTIALS OK]
Subdivision 1. Definition.
For the purpose of this section, "employer" has the meaning given it in section 179.01, subdivision 3.
Subd. 2. Prohibited practice.
An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours. For purposes of this section, "lawful consumable products" means products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco.
Subd. 3. Exceptions.
(a) It is not a violation of subdivision 2 for an employer to restrict the use of lawful consumable products by employees during nonworking hours if the employer's restriction:
(1) relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees; or
(2) is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer.
(b) It is not a violation of subdivision 2 for an employer to refuse to hire an applicant or discipline or discharge an employee who refuses or fails to comply with the conditions established by a chemical dependency treatment or aftercare program.
(c) It is not a violation of subdivision 2 for an employer to offer, impose, or have in effect a health or life insurance plan that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employee's use of lawful consumable products, provided that, to the extent that different premium rates are charged to the employees, those rates must reflect the actual differential cost to the employer.
(d) It is not a violation of subdivision 2 for an employer to refuse to hire an applicant or discipline or discharge an employee on the basis of the applicant's or employee's past or present job performance.
Subd. 4. Remedy.

The sole remedy for a violation of subdivision 2 is a civil action for damages. Damages are limited to wages and benefits lost by the individual because of the violation. A court shall award the prevailing party in the action, whether plaintiff or defendant, court costs and a reasonable attorney fee.


MISSISSIPPI: MISS. CODE ANN. § 71-7-33

§ 71-7-33. Requirement of abstention from use of tobacco products during nonworking hours as condition of employment prohibited
It shall be unlawful for any public or private employer to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours.


MISSOURI: MO. REV. STAT. § 290.145 [INSURANCE DIFFERENTIALS OK]

§ 290.145. Discrimination, refusal to hire or discharge employee for alcohol or tobacco use not during working hours, prohibited, exception -- not cause for legal actions
It shall be an improper employment practice for an employer to refuse to hire, or to discharge, any individual, or to otherwise disadvantage any individual, with respect to compensation, terms or conditions of employment because the individual uses lawful alcohol or tobacco products off the premises of the employer during hours such individual is not working for the employer, unless such use interferes with the duties and performance of the employee, the employee's coworkers, or the overall operation of the employer's business; except that, nothing in this section shall prohibit an employer from providing or contracting for health insurance benefits at a reduced premium rate or at a reduced deductible level for employees who do not smoke or use tobacco products. Religious organizations and church-operated institutions, and not-for-profit organizations whose principal business is health care promotion shall be exempt from the provisions of this section. The provisions of this section shall not be deemed to create a cause of action for injunctive relief, damages or other relief.


MONTANA: MONT. CODE ANN. §§ 39-2-313 & 39-2-314 [INSURANCE DIFFERENTIALS OK]

39-2-313 Discrimination prohibited for use of lawful product during nonworking hours -- exceptions.
(1) For purposes of this section, "lawful product" means a product that is legally consumed, used, or enjoyed and includes food, beverages, and tobacco.
(2) Except as provided in subsections (3) and (4), an employer may not refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer's premises during nonworking hours.
(3) Subsection (2) does not apply to:
(a) use of a lawful product that:
(i) affects in any manner an individual's ability to perform job-related employment responsibilities or the safety of other employees; or
(ii) conflicts with a bona fide occupational qualification that is reasonably related to the individual's employment;
(b) an individual who, on a personal basis, has a professional service contract with an employer and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products; or
(c) an employer that is a nonprofit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public.
(4) An employer does not violate this section if the employer takes action based on the belief that the employer's actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.
(5) An employer may offer, impose, or have in effect a health, disability, or life insurance policy that makes distinctions between employees for the type or price of coverage based on the employees' use of a product if:
(a) differential rates assessed against employees reflect actuarially justified differences in providing employee benefits;
(b) the employer provides an employee with written notice delineating the differential rates used by the employer's insurance carriers; and
(c) the distinctions in the type or price of coverage are not used to expand, limit, or curtail the rights or liabilities of a party in a civil cause of action.
39-2-314 Civil action limitation.
(1) Except as provided in subsection (2), an individual who is discharged, discriminated against, or denied employment in violation of 1. 39-2-313 may file a civil action against an employer within 1 year of the alleged violation and the court may require any reasonable measure to correct the discriminatory practice and to rectify the harm, pecuniary or otherwise, to the person discriminated against and may allow reasonable attorney fees to the prevailing party.
(2) Prior to filing a civil action under subsection (1), an employee shall, within 120 days of the alleged violation, initiate any internal grievance procedure available. If a grievance procedure is not exhausted within 120 days, the employee may file a civil action.



NEVADA: NEV. REV. STAT. § 613.333

613.333. Unlawful employment practices: Discrimination for lawful use of any product outside premises of employer which does not adversely affect job performance or safety of other employees.
1. It is an unlawful employment practice for an employer to:
(a) Fail or refuse to hire a prospective employee; or
(b) Discharge or otherwise discriminate against any employee concerning his compensation, terms, conditions or privileges of employment, because he engages in the lawful use in this state of any product outside the premises of the employer during his nonworking hours, if that use does not adversely affect his ability to perform his job or the safety of other employees.

2. An employee who is discharged or otherwise discriminated against in violation of subsection 1 or a prospective employee who is denied employment because of a violation of subsection 1 may bring a civil action against the employer who violates the provisions of subsection 1 and obtain:
(a) Any wages and benefits lost as a result of the violation;
(b) An order of reinstatement without loss of position, seniority or benefits;
(c) An order directing the employer to offer employment to the prospective employee; and
(d) Damages equal to the amount of the lost wages and benefits.
3. The court shall award reasonable costs, including court costs and attorney's fees to the prevailing party in an action brought pursuant to this section.
4. The remedy provided for in this section is the exclusive remedy for an action brought pursuant to this section.


NEW HAMPSHIRE: N.H. REV. STAT. ANN. § 275:37-a

275:37-a Discrimination on Basis of Using Tobacco Products Prohibited.
No employer shall require as a condition of employment that any employee or applicant for employment abstain from using tobacco products outside the course of employment, as long as the employee complies with any workplace policy, pursuant to RSA 155:51-53 and, when applicable, 1. RSA 155:64-77.


NEW JERSEY: N.J. STAT. ANN. §§ 34:6B-1 et seq.

§ 34:6B-1. Smoking, use of tobacco products shall not affect employment
No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.



NEW MEXICO: N.M. STAT. ANN. §§ 50-11-3

§ 50-11-3. Employers; unlawful practices
A. It is unlawful for an employer to:
(1) refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual is a smoker or nonsmoker, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours; or
(2) require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours, provided the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours.
B. The provisions of Subsection A of this section shall not be deemed to protect any activity that:

(1) materially threatens an employer's legitimate conflict of interest policy reasonably designed to protect the employer's trade secrets, proprietary information or other proprietary interests; or
(2) relates to a bona fide occupational requirement and is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer.


NEW YORK: N.Y. [LABOR] LAW § 201-d [INSURANCE DIFFERENTIALS OK]

§ 201-d. Discrimination against the engagement in certain activities
2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:
b. an individual's legal use of consumable products prior to the beginning or after the conclusion of the employee's work hours, and off of the employer's premises and without use of the employer's equipment or other property;
6. Nothing in this section shall prohibit an organization or employer from offering, imposing or having in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or use of consumable products, provided that differential premium rates charged employees reflect a differential cost to the employer and that employers provide employees with a statement delineating the differential rates used by the carriers providing insurance for the employer, and provided further that such distinctions in type or price of coverage shall not be utilized to expand, limit or curtail the rights or liabilities of any party with regard to a civil cause of action.


NORTH CAROLINA: N.C. GEN. STAT. § 95-28.2 [INSURANCE DIFFERENTIALS OK]

§ 95-28.2. Discrimination against persons for lawful use of lawful products during nonworking hours prohibited
(a) As used in this section, "employer" means the State and all political subdivisions of the State, public and quasi-public corporations, boards, bureaus, commissions, councils, and private employers with three or more regularly employed employees.
(b) It is an unlawful employment practice for an employer to fail or refuse to hire a prospective employee, or discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the prospective employee or the employee engages in or has engaged in the lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours and does not adversely affect the employee's job performance or the person's ability to properly fulfill the responsibilities of the position in question or the safety of other employees.(c) It is not a violation of this section for an employer to do any of the following:
(1) Restrict the lawful use of lawful products by employees during nonworking hours if the restriction relates to a bona fide occupational requirement and is reasonably related to the employment activities. If the restriction reasonably relates to only a particular employee or group of employees, then the restriction may only lawfully apply to them.
(2) Restrict the lawful use of lawful products by employees during nonworking hours if the restriction relates to the fundamental objectives of the organization.
(3) Discharge, discipline, or take any action against an employee because of the employee's failure to comply with the requirements of the employer's substance abuse prevention program or the recommendations of substance abuse prevention counselors employed or retained by the employer.
(d) This section shall not prohibit an employer from offering, imposing, or having in effect a health, disability, or life insurance policy distinguishing between employees for the type or price of coverage based on the use or nonuse of lawful products if each of the following is met:
(1) Differential rates assessed employees reflect actuarially justified differences in the provision of employee benefits.
(2) The employer provides written notice to employees setting forth the differential rates imposed by insurance carriers.
(3) The employer contributes an equal amount to the insurance carrier on behalf of each employee of the employer.
(e) An employee who is discharged or otherwise discriminated against, or a prospective employee who is denied employment in violation of this section, may bring a civil action within one year from the date of the alleged violation against the employer who violates the provisions of subsection (b) of this section and obtain any of the following:
(1) Any wages or benefits lost as a result of the violation;
(2) An order of reinstatement without loss of position, seniority, or benefits; or
(3) An order directing the employer to offer employment to the prospective employee.
(f) The court may award reasonable costs, including court costs and attorneys' fees, to the prevailing party in an action brought pursuant to this section.


NORTH DAKOTA: N.D. CENT. CODE §§ 14-02.4-01 et seq.

14-02.4-01. State policy against discrimination.

It is the policy of this state to prohibit discrimination on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer; to prevent and eliminate discrimination in employment relations, public accommodations, housing, state and local government services, and credit transactions; and to deter those who aid, abet, or induce discrimination or coerce others to discriminate.


OKLAHOMA: OKLA. STAT. ANN. tit. 40, § 500

§ 500. Nonsmoking as condition of employment
It shall be unlawful for an employer to:

1. Discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual is a nonsmoker or smokes or uses tobacco products during nonworking hours; or
2. Require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours.


OREGON: OR. REV. STAT. §§ 659A.315 & 659A.885

659A.315. Restricting use of tobacco in nonworking hours prohibited; exceptions.
(1) It is an unlawful employment practice for any employer to require, as a condition of employment, that any employee or prospective employee refrain from using lawful tobacco products during nonworking hours, except when the restriction relates to a bona fide occupational requirement.
(2) Subsection (1) of this section does not apply if an applicable collective bargaining agreement prohibits off-duty use of tobacco products.


RHODE ISLAND: R.I. GEN. LAWS § 23-20.10-14

§ 23-20.10-14. Prohibited condition of employment -- Smoking by employees outside course of employment
(a) No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his or her employment, or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his or her employment. Provided, however, that the following employers shall be exempt from the provisions of this section: Any employer that is a nonprofit organization which as one of its primary purposes or objectives discourages the use of tobacco products by the general public.
(b) In any civil action alleging a violation of this section, the court may:
(1) Award up to three (3) times the actual damages to a prevailing employee or prospective employee;
(2) Award court costs to a prevailing employee or prospective employee;
(3) Afford injunctive relief against any employer who commits or proposes to commit a violation of this chapter.
(c) Nothing contained in this chapter shall be construed to affect any other provisions of this title.


SOUTH CAROLINA: S.C. CODE ANN. § 41-1-85

§ 41-1-85. Personnel action based on use of tobacco products outside of workplace prohibited.

The use of tobacco products outside the workplace must not be the basis of personnel action, including, but not limited to, employment, termination, demotion, or promotion of an employee.


SOUTH DAKOTA: S.D. CODIFIED LAWS § 60-4-11 [CURRENT EMPLOYEE ONLY] [INSURANCE DIFFERENTIALS OK]

It is a discriminatory or unfair employment practice for an employer to terminate the employment of an employee due to that employee's engaging in any use of tobacco products off the premises of the employer during nonworking hours unless such a restriction:
(1) Relates to a bona fide occupational requirement and is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
(2) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.
Notwithstanding any other provisions of this chapter, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: the person may bring a civil suit for damages in circuit court and may sue for all wages and benefits which have been due up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred. However, nothing in this section may be construed to relieve such person from the obligation to mitigate damages. It is not a discriminatory or unfair employment practice pursuant to this section for an employer to offer, impose or have in effect a health or life insurance policy that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employees' use of tobacco products. The provisions of this section shall not apply to full-time fire fighters.


TENNESSEE:  TENN. CODE ANN. § 50-1-304 [CURRENT EMPLOYEES]

50-1-304. Discharge for refusal to participate in or remain silent about illegal activities, or for legal use of agricultural product -- Damages -- Frivolous lawsuits.
(a) As used in this section:
(1) "Employee" includes, but is not limited to:
(A) A person employed by the state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
(B) A person employed by a private employer; or
(C) A person who receives compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time employee of the federal government;
(2) "Employer" includes, but is not limited to:
(A) The state or any municipality, county, department, board, commission, agency, instrumentality, political subdivision or any other entity of the state;
(B) A private employer; or
(C) The federal government as to an employee who receives compensation from the federal government for services performed for the federal government, notwithstanding that the person is not a full-time federal employee; and(3) "Illegal activities" means activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare.
(b) No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities.
(c) [Deleted by 2009 amendment.]
(d) (1) Any employee terminated in violation of subsection (b) shall have a cause of action against the employer for retaliatory discharge and any other damages to which the employee may be entitled.
(2) Any employee terminated in violation of subsection (b) solely for refusing to participate in, or for refusing to remain silent about, illegal activities who prevails in a cause of action against an employer for retaliatory discharge for the actions shall be entitled to recover reasonable attorney fees and costs.
(e) (1) No employee shall be discharged or terminated solely for participating or engaging in the use of an agricultural product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law, if the employee participates or engages in the use in a manner that complies with all applicable employer policies regarding the use during times at which the employee is working.
(2) No employee shall be discharged or terminated solely for participating or engaging in the use of the product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law if the employee participates or engages in the activity during times when the employee is not working.
(f) (1) This section shall not be used for frivolous lawsuits, and anyone trying to do so is subject to sanction as provided in subdivision (f)(2).
(2) If any employee files a cause of action for retaliatory discharge for any improper purpose, such as to harass or to cause needless increase in costs to the employer, the court, upon motion or upon its own initiative, shall impose upon the employee an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred, including reasonable attorney's fees.


VIRGINIA: VA. CODE ANN. § 2.2-2902 [STATE EMPLOYEES ONLY]

§ 2.2-2902. Use of tobacco products by state employees

No employee of or applicant for employment with the Commonwealth shall be required, as a condition of employment, to smoke or use tobacco products on the job, or to abstain from smoking or using tobacco products outside the course of his employment, provided that this section shall not apply to those classes of employees to which 1. § 27-40.1 [FIRE FIGHTERS] or § 51.1-813 [POLICE OFFICERS] is applicable

WEST VIRGINIA: W. VA. CODE § 21-3-19 [INSURANCE DIFFERENTIALS OK]

§ 21-3-19. Discrimination for use of tobacco products prohibited.

(a) It shall be unlawful for any employer, whether public or private, or the agent of such employer to refuse to hire any individual or to discharge any employee or otherwise to disadvantage or penalize any employee with respect to compensation, terms, conditions or privileges of employment solely because such individual uses tobacco products off the premises of the employer during nonworking hours.
(b) This section shall not apply with respect to an employer which is a nonprofit organization which, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public.
(c) This section shall not prohibit an employer from offering, imposing or having in effect a health, disability or life insurance policy which makes distinctions between employees for type of coverage or price of coverage based upon the employee's use of tobacco products: Provided, That any differential premium rates charged to employees must reflect differential costs to the employer: Provided, however, That the employer must provide employees with a statement delineating the differential rates used by its insurance carriers.
(d) Nothing in this section shall be construed to prohibit an employer from making available to smokers and other users of tobacco products, programs, free of charge or at reduced rates, which encourage the reduction or cessation of smoking or tobacco use.


WISCONSIN: WIS. STAT. §§ 111.31 et seq. [INSURANCE DIFFERENTIALS OK]

111.321. Prohibited bases of discrimination.
Subject to S. 111.33 to 111.36, no employer, labor organization, employment agency, licensing agency, or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, military service, or use or nonuse of lawful products off the employers premises during nonworking hours.
111.35. Use or nonuse of lawful products; exceptions and special cases.
(1) (a) Notwithstanding s. 111.322, it is not employment discrimination because of use of a lawful product off the employers premises during nonworking hours for a nonprofit corporation that, as one of its primary purposes or objectives, discourages the general public from using a lawful product to refuse to hire or employ an individual, to suspend or terminate the employment of an individual, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment, because that individual uses off the employers premises during nonworking hours a lawful product that the nonprofit corporation discourages the general public from using.(b) Notwithstanding s. 111.322, it is not employment discrimination because of nonuse of a lawful product off the employers premises during nonworking hours for a nonprofit corporation that, as one of its primary purposes or objectives, encourages the general public to use a lawful product to refuse to hire or employ an individual, to suspend or terminate the employment of an individual, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment, because that individual does not use off the employers premises during nonworking hours a lawful product that the nonprofit corporation encourages the general public to use.
(2) Notwithstanding s. 111.322, it is not employment discrimination because of use or nonuse of a lawful product off the employers premises during nonworking hours for an employer, labor organization, employment agency, licensing agency or other person to refuse to hire, employ, admit, or license an individual, to bar, suspend or terminate an individual from employment, membership or licensure, or to discriminate against an individual in promotion, in compensation or in terms, conditions or privileges of employment or labor organization membership if the individuals use or nonuse of a lawful product off the employers premises during nonworking hours does any of the following:(a) Impairs the individuals ability to undertake adequately the job-related responsibilities of that individuals employment, membership or licensure.(b) Creates a conflict of interest, or the appearance of a conflict of interest, with the job-related responsibilities of that individuals employment, membership or licensure.(c) Conflicts with a bona fide occupational qualification that is reasonably related to the job-related responsibilities of that individuals employment, membership or licensure.(d) Constitutes a violation of s. 254.92 (2) (e) Conflicts with any federal or state statute, rule or regulation.
(3) (a) Notwithstanding s. 111.322, it is not employment discrimination because of use of a lawful product off the employers premises during nonworking hours for an employer, labor organization, employment agency, licensing agency or other person to offer a policy or plan of life, health or disability insurance coverage under which the type of coverage or the price of coverage for an individual who uses a lawful product off the employers premises during nonworking hours differs from the type of coverage or the price of coverage provided for an individual who does not use that lawful product, if all of the following conditions apply:
1. The difference between the premium rates charged to an individual who uses that lawful product and the premium rates charged to an individual who does not use that lawful product reflects the cost of providing the coverage to the individual who uses that lawful product.
2. The employer, labor organization, employment agency, licensing agency or other person that offers the coverage provides each individual who is charged a different premium rate based on that individuals use of a lawful product off the employers premises during nonworking hours with a written statement specifying the premium rate differential used by the insurance carrier.(b) Notwithstanding s. 111.322, it is not employment discrimination because of nonuse of a lawful product off the employers premises during nonworking hours for an employer, labor organization, employment agency, licensing agency or other person to offer a policy or plan of life, health or disability insurance coverage under which the type of coverage or the price of coverage for an individual who does not use a lawful product off the employers premises during nonworking hours differs from the type of coverage or the price of coverage provided for an individual who uses that lawful product, if all of the following conditions apply:
1. The difference between the premium rates charged to an individual who does not use that lawful product and the premium rates charged to an individual who uses that lawful product reflects the cost of providing the coverage to the individual who does not use that lawful product.
2. The employer, labor organization, employment agency, licensing agency or other person that offers the coverage provides each individual who is charged a different premium rate based on that individuals nonuse of a lawful product off the employers premises during nonworking hours with a written statement specifying the premium rate differential used by the insurance carrier.
(4) Notwithstanding s. 111.322, it is not employment discrimination because of use of a lawful product off the employers premises during nonworking hours to refuse to employ an applicant if the applicants use of a lawful product consists of smoking tobacco and the employment is as a fire fighter covered under s. 891.45 or 891.455


WYOMING: WYO. STAT. ANN. §§ 27-9-101 et seq. [INSURANCE DIFFERENTIALS OK]

§ 27-9-105. Discriminatory and unfair employment practices enumerated; limitations.(a) It is a discriminatory or unfair employment practice:
(i) For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation or the terms, conditions or privileges of employment against, a qualified disabled person or any person otherwise qualified, because of age, sex, race, creed, color, national origin, ancestry or pregnancy;
(ii) For a person, an employment agency, a labor organization, or its employees or members, to discriminate in matters of employment or membership against any person, otherwise qualified, because of age, sex, race, creed, color, national origin, ancestry or pregnancy, or a qualified disabled person;
(iii) For an employer to reduce the wage of any employee to comply with this chapter;
(iv) For an employer to require as a condition of employment that any employee or prospective employee use or refrain from using tobacco products outside the course of his employment, or otherwise to discriminate against any person in matters of compensation or the terms, conditions or privileges of employment on the basis of use or nonuse of tobacco products outside the course of his employment unless it is a bona fide occupational qualification that a person not use tobacco products outside the workplace. Nothing within this paragraph shall prohibit an employer from offering, imposing or having in effect a health, disability or life insurance policy distinguishing between employees for type or price of coverage based upon the use or nonuse of tobacco products if:
(A) Differential rates assessed employees reflect an actual differential cost to the employer; and
(B) Employers provide written notice to employees setting forth the differential rates imposed by insurance carriers.
(b) The prohibitions against discrimination based on age in this section apply only to persons at least forty (40) years of age.
(c) It is not a discriminatory practice for an employer, employment agency or labor organization to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension or insurance plan, which is not a subterfuge to evade the purposes of this chapter, except that no employee benefit plan shall excuse the failure to hire any individual, and no seniority system or employee benefit plan shall require or permit involuntary retirement of any individual protected under this chapter because of age. Involuntary retirement is not prohibited if permitted under Title 1. 29, United States Code § 631(c).
(d) As used in this section "qualified disabled person" means a disabled person who is capable of performing a particular job, or who would be capable of performing a particular job with reasonable accommodation to his disability.

Action on Smoking and Health (ASH)
701 4th St. NW / Washington, DC 20001 / (202) 659-4310
A national nonprofit, scientific and educational organization founded in 1967.
All donations are fully tax deductible.