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You can ban employee smoking, but can you ban smokers?

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in Discrimination and Harassment,Employee Benefits Program,Employment Law,Human Resources

Employers are always looking for ways to cut health care costs … and smoking and overweight employees may seem like ripe targets for change.

The most famous example of aggressive employer cost-cutting occurred at Michigan-based medical benefits administrator Weyco, Inc., which told its smoking employees to quit or be fired.

Like Georgia, Michigan has no law that protects employees from such an employer edict. Some Weyco employees were fired. Those who stayed were fuming but not smoking.

While Georgia employers could do something similar, they may have to watch out for a backlash. The Weyco incident inspired many states to pass laws protecting employee rights to smoke while off-duty.

Currently, 30 states and the District of Columbia have passed “lifestyle discrimination” laws that prohibit employers from discriminating against employees or applicants for legal practices they perform off-duty.

Federal law, smoking, obesity

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) prohibits employers from discriminating against employees based on their health condition when determining benefit premiums or contributions. HIPAA makes an exception for “wellness programs,” in which employers can offer incentives or provide education to smokers and the overweight to help them change their behavior.

Wellness-program rewards must be available to all similarly situated individuals within a company. Under HIPAA, that means employees who have an unreasonably difficult time meeting the program’s standard must have an alternative reward available. Employers may ask for medical certification of the employee’s condition to verify that the program’s standards are indeed unreasonably difficult for the employ to attain.

In the case of a program designed to help smokers quit, for example, employees who can document a nicotine addiction could gain the reward by agreeing to wear a nicotine patch or by attending smoking cessation classes. Weight-loss programs would have to make allowances for workers with medical conditions that make it difficult for them to exercise or lose weight.

For HIPAA compliance assistance, go to www.dol.gov/ebsa/pdf/CAGTableOfContents.pdf.

Fairness is the watchword

Whatever initiatives employers try, they must enforce all rules uniformly. Targeting women, minorities, workers over 40 or the disabled could run afoul of federal discrimination law or the ADA.

Further, these laws allow for “disparate impact” lawsuits in which affected employees could argue that a ban on smokers affects their group disproportionately.

To defend against such a suit, the employer must show that the ban or weight requirement is being instituted due to business necessity.

So far, the disparate-impact argument against a ban on smokers (or the business necessity defense to it) have not been tried in court. On the bright side, courts consistently have rejected nicotine addiction as a disability under the ADA.


The following states—and the District of Columbia—have laws that prohibit employers from discriminating against an employee or applicant based on the person’s use of tobacco or other lawful products:

New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Rhode Island
South Carolina
South Dakota
West Virginia


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