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Can You Fire Employees Who Smoke?

Despite data showing that each smoker costs their employer nearly $6,000 in lost productivity and higher medical costs, employers are still bound by laws when it comes to smoker discrimination. In many states, it’s illegal to discriminate against smokers, with worker rights advocates stating that employers have no jurisdiction over what an employee does after work hours.

Some companies have begun to find ways to work around the law, including refusing to hire anyone with traces of nicotine in their urine during routine drug testing. Other companies, fearing the legalities of such hiring practices, have taken trickier measures to get around the law, such as banning smoking while within a certain number of feet of the building, even if the employee is in their car. But whatever issues a business faces involving its smokers, it’s important to be aware of a business’s rights when it comes to hiring, firing, and disciplining nicotine-addicted workers.

The Drug-Testing Question

Employers now regularly exercise their right to require a drug test prior to hiring a candidate, eliminating candidates who are unable to pass. The presence of illegal drugs in an applicant’s urine or blood is a reasonable excuse to pass on an employee, with courts having routinely upheld the rights of employers to use the results of these tests in their hiring decisions.

However, when nicotine is found in the candidate’s screening results, an employer’s options are limited. Nicotine is still a legal substance, so the courts aren’t as quick to rule in favor of the employer in these cases. While there are no federal laws protecting smokers against pre-employment discrimination, 29 states currently prohibit it. If you aren’t located in one of those 29 states, you may be able to decline to hire smokers as part of a “smoke-free workplace,” although you may still find yourself the subject of litigation. It’s important to carefully research your local laws to ensure you would win such a case.

Firing Smokers

In many cases, employers have no idea whether an employee smokes until that employee is on staff. Once an employee has been identified as a smoker, firing that employee can be tricky. In some cases, courts have upheld employers’ decisions to dismiss employees for smoking, even when the activities are taking place after hours. The argument in many of these cases centers on health insurance premiums, which can be higher for all employees, even if only some employees smoke.

Instead of firing employees, some workplaces are finding it far more valuable to implement smoking cessation programs. These programs support workers in their attempts to quit smoking by offering seminars, counseling, and substantial discounts for cessation aids like prescription medications and patches. Workplaces have also found that tying their wellness programs into their insurance plans allows them to reward those workers who take measures to get healthy with lower premiums, rather than punishing the employees who smoke.

Dealing with Complaints

In addition to health concerns and disrupted workflow, a boss must also cope with complaints from non-smoking workers. Smokers are known to take more breaks than non-smokers, since they must indulge their habits. To be fair, many workplaces institute strict break policies, such as 15 minutes in the morning and afternoon in addition to the designated period for lunch. However, more frequent smokers may sneak outside for a quick cigarette in addition to those breaks. Most employers don’t have time to monitor these behaviors all day, so these employees could slip beneath the radar until an official complaint is filed.

Non-smokers may also take issue with the secondhand smoke as they pass workers in the designated smoking areas. Employers are often caught between trying to be fair to smokers without infringing on the rights of non-smokers. For this to be effective, designated smoking areas should be situated away from walkways and entrances. Some businesses have also found that by not providing a comfortable, sheltered area with tables and chairs, they’re able to shorten employee break times and offset the estimated financial loss.

It’s important to note that there have been cases where employees have filed worker’s compensation claims based on the health effects they suffer as a result of secondhand smoke. This shows the importance of safeguarding non-smoking workers and taking their complaints seriously. Employers are responsible for ensuring that reasonable accommodations are made to keep employees healthy and safe.

Policies and Disciplinary Action

As with any employee behavior, strong policies and regular feedback are the best methods for maintaining a productive workplace environment. When written policies are in place, an employer has much more leverage when those policies need to be enforced. It’s important to focus on making the rules fair for everyone. Employers should outline all allowed breaks and make clear that the breaks can be revoked by supervisors if the workload mandates it. This covers employers in the event a smoking employee continuously leaves to smoke while the team is working hard to meet a deadline.

When it becomes necessary to discipline a smoker’s behavior, employers should focus on actions that violate company policies rather than the smoking habit itself. While laws in many states protect smokers against discrimination, those laws don’t include allowing smokers to take breaks each half hour or smoke in undesignated areas. If an employee consistently violates the rules despite verbal or written warnings, employers can legitimately initiate disciplinary action based on these misbehaviors.

Focus on Outcomes

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