Hospitals and other medical-related employers are at the forefront of a growing trend of employers who have adopted policies prohibiting the hiring of smokers. This practice goes far beyond merely banning employees from smoking in the workplace. Rather, these employers are actually telling smokers that they need not apply for employment at all, or that they will be fired if they are caught smoking, even if away from the workplace.
The New York Times recently reported that employers who have implemented smoker-free workplace policies now have applications that “explicitly warn of ‘tobacco-free hiring,’ job seeker must submit to urine tests for nicotine and new employees caught smoking face termination.” Employers who have adopted policies banning smokers from employment justify this hiring practice as advancing their mission to promote personal well-being and healthier living. These employers also cite efforts to reduce high health care costs and increase employee productivity. Opponents of smoker-free policies argue that they invade personal privacy and could pave the way for employers to regulate other lifestyle choices such as consuming alcohol or even fast food.
This growing trend begs the question of whether California employers may legally adopt similar policies that smokers will not be hired. After all, California was a leader in passing anti-smoking laws that banned smoking in public places such as restaurants, bars and casinos. Currently, California is considering legislation that if passed would ban smoking at all state parks and beaches. Even the stereotype of a Californian is that of a health-conscious, physically fit individual.
However, Californians are also known to be champions of civil liberties. Thus, California employers will likely face numerous efforts seeking to obstruct implementation of smoker-free policies. For example, Labor Code sections 96(k) and 98.6 prohibit employers from discharging an employee or discriminating against any employee or applicant for employment because the employee or applicant engaged in lawful conduct occurring during nonworking hours away from the employer’s premises. Since the act of smoking itself remains legal in California, employers who refuse to hire smokers may be subject to liability under these provisions.
In addition, smoker-free policies may be challenged on privacy grounds as an improper attempt to monitor and regulate personal conduct. Finally, an aggrieved smoker may be able to assert a claim for disability discrimination if he or she is able to show that the employer believed that the smoker would be more likely to miss work due to smoking-related illnesses. Both the Americans with Disabilities Act and the Fair Employment and Housing Act prohibit discrimination based on a perceived disability.