RBS News

 - Can I refuse to hire a smoker?

 - In Ohio, the answer is YES. There are no laws in Ohio which would protect a tobacco user from termination.  However, Ohio is in the minority.  

In some states it is illegal to discriminate against employees for smoking during non-work hours, including Arizona, California (I know! I could not believe either. The law in California actually does not protect smoking per se, but does protect employees from being terminated for engaging in lawful activity during non-work hours), Colorado, Connecticut, Washington D.C., Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, West Virginia, Wisconsin, and Wyoming.

Keep in mind that in most of the aforementioned states smoking is either prohibited or can be prohibited in the workplace, and an employee can be terminated for smoking at the workplace.  Three states, Utah, North Dakota and New Jersey have instituted laws which prohibit e-cigarettes.  Thus, employers in most states, including Ohio, are free to regulate e-cigarettes as they wish.  For states where discrimination on the basis of non-work legal activity, such as California, "Vapers" are protected from termination and other adverse employment actions.

A majority of these states allow employers to charge higher insurance premiums to smokers.  Finally, Employers should be mindful that health conditions which are caused by smoking may constitute a disability under the Americans with Disabilities Act. Also, discriminating against smokers could potentially lead to a disparate impact claim because although it is facially neutral it has the effect of limiting opportunities for a protected class.

Should you have any questions regarding worker place regulations, please feel free to contact me at 216-447-1551.