Refusing to Hire Smokers: Is This Legal?
Smoking Casts a Haze on Employability
One of the over-arching concerns facing employers with regard to hiring a smoker is healthcare costs. In light of the ever-transitioning healthcare landscape, the costs incurred by a business for the coverage of a smoker can be astronomical and easily avoided by selecting a comparable non-smoking candidate for an open position.
In addition, many coverage providers charge an increased premium to smokers who are more likely to need regular medical care and treatments as a result of long-term exposure to nicotine and the carcinogenic effects of cigarettes and tobacco products, thereby raising costs for the employer and other workers as well. In the end, employers are realizing that the sheer costs to maintain a smoking employee on the payroll often do not outweigh the benefits of hiring the best and brightest applicants.
In addition to the healthcare costs, many employers perceive smokers to be more susceptible to illnesses, including pneumonia and the flu. For this reason, employers may choose not to hire a candidate based solely on the risk of decreased productivity associated with a perpetually-ill worker. However, this analysis begins treading on another area, an area protected from discrimination and adverse workplace treatment: medical history and disability.
Distinguishing Smoking Discrimination From Something More Serious
In Ohio, discriminating against smokers is generally permitted. However, discriminating against an individual for a medical condition or disability is not, as both are prohibited by the Americans with Disabilities Act (ADA).
Under the ADA, an employer cannot take adverse action against an employee based solely on that person’s medical disability, regardless of whether the disability occurred due to smoking or otherwise. To trigger ADA protection, the employee must suffer from a physical impairment significantly limiting or restricting his or her major life activities.
Moreover, the employee must be otherwise capable and qualified to perform his or her job. With these conditions met, the employer must make reasonable accommodations for the employee, including a modified work schedule or allowing for regularly-scheduled breaks.
Distinguishing between smoker discrimination and disability discrimination may be difficult at first, but a Cincinnati employment attorney can help determine whether the employer is genuinely protecting its business from the costs of employing a tobacco user, or if the excuse is nothing more than a smokescreen.
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