Can you refuse to hire smokers?

The law is still developing on the issue of whether employers can implement a ban on the hiring of smokers. That means that there are more potential legal risks in non-smoker hiring policies than actual, concrete legal risks. The potential legal risks include employment claims of disability discrimination relating to one or more of the physical conditions associated with smoking (such as heart disease, lung cancer, asthma, etc.), Sheldon Blumling, an employee benefits law attorney and partner at Fisher & Phillips LLP, told CCH in an interview. In addition, an employment claim of disability discrimination could be based upon the position that smoking is a physical addiction.

Blumling also said that Potential HIPAA discrimination claims could also be brought under the employer’s group health plan. HIPAA prohibits discrimination with respect to group health plan eligibility and cost on the basis of health status factors. These factors definitely include one or more of the physical conditions associated with smoking (such as heart disease, lung cancer, asthma, etc.) and may be argued to include smoking itself, based upon the position that smoking is a physical addiction.

Given that the law is still developing on this issue, there is no magic policy language that will ensure the legality of a policy. Blumling encourages employers to tread carefully on this issue and consult their employment law counsel before proceeding.