In response to moves to limit smoking in the early 1990’s, the legislature amended the state labor code to forbid employers from discriminating against employees who smoke.
Specifically, it’s illegal for employers to discriminate against “the lawful use of lawful products during nonworking hours.”
That means employers can’t refuse to hire smokers regardless of their potential impact on employer health costs. But you may limit off-duty smoking in limited circumstances:
- If the restriction relates to a bona fide occupational requirement and is reasonably related to employment activities. (If the restriction relates to only a particular employee or group of employees, you can apply the rule only to them.)
- If the restriction relates to the fundamental objectives of your organization.
Insurance premiums: Employer-sponsored programs for life or health insurance may differentiate between smokers and non-smokers as long as the difference in premiums is “actuarially justified.”
Note: The law also allows an employer to discharge, discipline or take action against an employee who fails to comply with the organization’s substance-abuse prevention program or with the recommendations of substance-abuse counselors employed or retained by the employer.