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Terminating smokers: When there’s smoke, can you fire?

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in Firing,Hiring,HR Management,Human Resources,Leaders & Managers,Management Training

Ever since media reports focused earlier this year on a Michigan company's strict policy banning smokers on staff, many employers have asked the question: "Can we, should we, do the same?"

Legally speaking, the answer depends on three factors: your state law, your at-will employment policy and how much risk you're willing to accept.

Some background: In February, benefits vendor Weyco Inc. made headlines by firing four employees who refused to submit to a nicotine test. The company had drafted a new policy that made smoking a firing offense, even if it's done at home. Weyco now randomly tests its 200 employees for nicotine use, saying it will fire those who test positive and refuse to quit smoking. (See more on Weyco's policy at www.weyco.com.)

Weyco isn't alone in its get-tough policies. Alaska Airlines' policy prohibits hiring smokers. And Union Pacific railroad in Nebraska recently launched a no-smoking policy for employees in seven states.

All have the same goal: cut ever-rising health care costs.

Heed state 'lifestyle bias' laws

The employment-at-will doctrine under which most employers operate allows you to fire people for any legal reason.

But is it illegal to discriminate against employees or applicants be-cause they smoke, or because of what they do in their own private time? That answer depends on where your organization is located.

Currently, laws in 29 states and the District of Columbia protect employees from being fired or discriminated against because of their use of "lawful products outside the workplace, which would include using tobacco products.

While such "lifestyle discrimination" laws are on the books in more than half the states, no such law exists in Michigan, so Weyco can legally ban smokers from its staff. (In response to the publicity, a Michigan state lawmaker now plans to introduce lifestyle discrimination legislation.)

Try other steps before total ban

So, should you mandate a corporate smoke-out? While the practice may still be legal in some states, it's still not a popular choice. Only 1 percent of businesses currently refuse to hire smokers and only 5 percent say they prefer not to hire smokers, according to a recent Society for Human Resource Management survey.

Until the smoke clears, weigh these three points:

1. Consider your industry and organization. If you work for a health care company or an education institution, for example, a no-smoking policy might make sense and might even be expected. It may be unrealistic in other places. Also, workplaces governed by collective-bargaining agreements may face other limits to such policies.

2. Don't single out employees for lifestyle choices. Even if your state laws allow it, firing smokers can spark a lawsuit. And even if you win, the case would be disruptive, costly and time-consuming. Smoking bans could also limit your recruiting pool. Examine your willingness to accept such risks.

In Weyco's case, the potential financial benefits of a healthy work force outweighed the legal risks, but your organization's judgment may be different. Even Union Pacific says it allows some exceptions. The company will hire a smoker if it can't find another suitable applicant.

3. Offer incentives and assistance. Encouraging healthy behaviors can go a long way toward changing lifestyle habits. Many employers offer cash or gift incentives to quit smoking and subsidize health-club memberships and smoking-cessation classes. Some even set higher health-insurance premium levels for employees who smoke.

Example: Clipper Belt Lacer, a Grand Rapids, Mich.-based company, pays employees $500 to stop smoking for 12 months.


Smoke-free workplace states

States with total smoking bans in workplaces, restaurants and bars:


  • California



  • Connecticut



  • Delaware



  • Maine



  • Massachusetts



  • New York



  • Rhode Island




Source: American Lung Association

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