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| Issue: |
Your company, a cement plant, offers Henry a job as an assistant kiln operator. The offer is contingent upon Henry’s successful completion of a physical examination. Henry accepts the offer and undergoes the medical exam, which reveals an abnormal chest x-ray and a long-standing smoking history. Based on these results, and the exposure to dust associated with the job, you tell Henry that he can still have the job as long as he agrees to stop smoking entirely. Henry refuses, claiming that whether he smokes while away from work is none of the company’s business. Is Henry right? What rights does the company have concerning Henry’s off-duty conduct? |
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Answer: |
More and more employers are seeking not only to maintain a smoke-free workplace but to also hire employees who do not smoke at all—either on or off duty. In response to the growing attempts by employers to prohibit off-duty smoking, many states have enacted “smokers’ rights” laws. These laws prohibit discrimination against employees and job applicants who smoke outside of their employer’s premises during nonwork hours.
Generally, these laws limit an employer’s ability to discharge an employee for smoking away from work on the employee’s own time. They also usually limit the employer’s ability to refuse to hire a prospective employee or to discriminate against an employee because of the employee’s off-duty smoking preferences.
Typically, in order for an employer to do anything about an employee’s off-duty smoking, there must be some relationship between the conduct and the job requirements or job performance. In the example above involving Henry, the applicant for assistant kiln operator, in a case involving similar facts, a state supreme court ruled that the smoking ban did not violate the state’s law prohibiting discrimination against an employee for use of tobacco products. Being physically able to perform the job in an exceptionally dusty environment was a legitimate requirement for an assistant kiln operator. The restriction was therefore reasonably and rationally related to employment because the company’s doctor concluded that, based on the individual’s history of more than 20 years of smoking and his abnormal chest x-ray, he was unsuitable for the position unless he stopped smoking.
Source: CCHKnowledgePoint HR How-to: Workplace Privacy. |
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