Employee Smoking Rights

••• sign of no smoking. smoking prohibited. control image by L. Shat from Fotolia.com

In general, the rights of an employee to smoke on the job are minimal and in many places completely outlawed. Just because the American workplace continues to move in the direction of marginalizing smokers does not mean that small businesses should ignore smoker's rights. Policies against smoking could become a violation of an employee's civil rights.


Employee smoking rights are a bit of misnomer, according to the Americans for Nonsmokers' Rights. The U.S. Constitution does not cover anyone's right to smoke. As a matter of fact, courts tend to side with businesses and laws that attempt to curtail the use of tobacco by employees. In addition, a tobacco addiction does not fall within any category of "disability" under the Americans with Disabilities Act.


Businesses cannot refuse to hire an individual because they are a smoker in the majority of states, according to PayScale. Also, some "smoker's rights" states ban employers from terminating an employee based on tobacco use off the clock. During working hours, however, businesses are free to ban smoking because anti-smoking campaigns are usually a part of an employee wellness program.


The rights of employees who smoke are somewhat vague in states that do not explicitly state their position on smoking, according to NOLO. In 2005, a Michigan company instituted a smoking ban for all employees during working and nonworking hours. Michigan did not consider this discrimination, so the state legislature had to pass a bill banning the practice of regulation off-work smoking.


To "punish" smokers, employers often offer lower premiums if an employee stops smoking, according to Business Management Daily. Theoretically, smokers could sue an employee over smoking regulations that negatively impact only smokers--known under the legal term "disparate impact." No case has yet to use the disparate impact strategy to fight a company's smoking policy.


Business Management Daily recommends that employers institute a wellness program that treats everyone fairly. Also, business owners should consider that they may need to defend a smoking program as a business necessity, such as for reducing health care costs. Employees, on the other hand, need to read over their employee handbook and find out the smoking laws from their local and state health offices.


About the Author

Russell Huebsch has written freelance articles covering a range of topics from basketball to politics in print and online publications. He graduated from Baylor University in 2009 with a Bachelor of Arts degree in political science.

Photo Credits

  • sign of no smoking. smoking prohibited. control image by L. Shat from Fotolia.com