Released on: October 29, 2007, 2:05 am

Press Release Author: David

Industry: Management

Press Release Summary: Federal law is silent when it comes to discrimination against
employees who smoke cigarettes, cigars, or pipes at work. As a result, many
companies establish policies allowing termination of employees or rejection of
applicants who choose to smoke.

Press Release Body: \"No Smokers Need Apply\" - Employment Discrimination Against
Smokers

Federal law is silent when it comes to discrimination against employees who smoke
cigarettes, cigars, or pipes at work. As a result, many companies establish policies
allowing termination of employees or rejection of applicants who choose to smoke.

Is it legal for my company to discriminate against smokers?
Anti-smoking legislation is largely a product of state law and varies across
jurisdictions. A majority of states protect workers against unwanted smoke in the
workplace. Beyond establishing smoke-free workplaces (nearly 75% of companies
sampled either prohibited smoking in the workplace or restricted it to designated
areas), employers have a near absolute right to make employment decisions based on
one\'s smoking habits.

Despite the undisputed right to smoke, these regulations favor the nonsmoker\'s right
to preserve health by avoiding secondhand smoke from co-workers. Moreover, studies
show that employees who smoke are less healthy than nonsmokers, are absent more, and
make more expensive claims for health and disability benefits. Therefore, local and
state government policy is to discourage smoking, with the belief that
discrimination against smokers will promote nonsmoking.

Is nicotine addiction a disability under the Americans with Disabilities Act?

Courts rarely hear cases dealing with smoker\'s rights under the ADA . One federal
district court held that common sense dictates that smoking is not a \"disability\"
within the meaning of the ADA: \"Congress could not possibly have intended the absurd
result of including smoking within the definition of \"disability,\" which would
render somewhere between 25% and 30% of the American public disabled under federal
law because they smoke.\" Brashear v. Simms, 138 F.Supp.2d 693, 695 (D. Md. 2001).

Proponents of smoker\'s rights argue by analogy that if alcoholism receives treatment
as a disability under the ADA , then smoking should also qualify. However, Supreme
Court precedent holds that alcoholism is an impairment rather than a per se
disability. A nicotine addiction, on the other hand, is remediable either by
willfully quitting, or by using such over-the-counter solutions like nicotine
patches or chewing gum.
Will a smoker still try to sue me?

Generally, lawsuits brought by employees claiming discrimination at work for smoking
are unsuccessful. However, anti-smoking laws include some common exceptions. Their
protections may not apply to:

. Locations of a private function, i.e. hotel banquet rooms
. private offices occupied exclusively by smokers
. inmates at correctional facilities and hospital patients if they are subjected to
the rules of the institution
. employers who can show that it would be financially or physically unreasonable to
comply with the legal limitations

Furthermore, some states (e.g. Minnesota , Montana , South Dakota , Wisconsin and
Wyoming ) forbid work-related discrimination against employees on the basis of
smoking, or any legal activities outside of work. Wisconsin law, for example, goes
an extra step and forbids employers from discriminating against both workers who use
lawful or unlawful products, such as illicit drugs.

Nonetheless, employers in these jurisdictions offering some protection to smokers
are free to restrict or even prohibit smoking during working hours. They are also
free to charge smokers higher health insurance premiums.

A qualified PEO can help you design a nonsmoking policy that is tailored to your
business. For more information go to www.PEO7.com.



Web Site: http://www.PEO7.com

Contact Details: PEO7.com
23945 Calabasas Rd. Suite 106 ,
Calabasas ,
CA 91302
800-PEO-7713
800-736-7713
cs@peo7.com