Can a company choose not to hire someone because they smoke?

When we first starting seeing these types of screeners from hiring companies a few years ago, we asked Jay Zweig, employment law partner at Bryan Cave, if it was in fact legal to use smoking as a reason not to hire someone, and Zweig assured us that “according to the Arizona Smoke Free Act, which bans smoking in enclosed public place and places of employment, employers are free to enact and enforce requirements that employees be non-smokers”.

Quite a few companies that we work with have policies excluding smokers from being hired, existing employees are offered and encouraged to take smoking cessation programs, and across the board companies are requiring smokers to pay higher insurance premiums. We recently had a company add tobacco as part of their drug testing policy to ensure that smokers were correctly identifying themselves for insurance purposes.

We once had an IT consultant who was working at the Pentagon dismissed and the reason given was that it took her approximately 30 minutes each way to get to the designated smoking area, and those ‘smoke breaks so eroded her productivity that she was not able to meet performance expectations’.

Recently we had a contractor that was looking for security personnel for high risk areas in the Middle East mandate that they only wanted non –smokers. It seemed kind of ironic, and when asked, the hiring manager shared with us that ‘the job itself did not lend to scheduled breaks, and they had found that smokers that were denied a smoke break would tend to exhibit traits not conducive to their best operation’. We all got a chuckle out of that one.

In this day and age of having thousands of qualified candidates apply to every job out there, employers are in the position where they can pick and choose the optimal candidates for their openings, and more and more are exercising their right to exclude smokers from consideration.