Employment Law Commentary - Volume 24, No. 4 - April 2011

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By now most people in the United States are accustomed to working in mandatory smoke-free environments. No smoking in the workplace has become such a cultural norm that seeing otherwise can be weirdly startling. Take the hit TV show Mad Men, for example. Its office scenes of chain-smoking ad men and prettily puffing secretaries have inspired scores of articles, blog posts, and commentary. To imagine a time when the hallways of work were clouded with cigarette smoke seems, to entire generations in the job force, well, unimaginable. The irony is that most of the actors on Mad Men are smoking herbal cigarettes on set instead of tobacco — and that’s, of course, because they work in modern-day California, which, like most states, prohibits any smoking of tobacco products in the workplace.

Over the years, some employers outside of California have been taking their “no-smoking” requirement a dramatic step further by imposing outright bans on hiring smokers. The impetus behind such bans is a desire to control employee healthcare costs and increase productivity. While this no-hire trend is not new, it appears to be ongoing and possibly even gaining traction in some job sectors. As reported recently by the New York Times, no-smoker policies “reflect a frustration that softer efforts—like banning smoking on company grounds, offering cessation programs and increasing health care premiums for smokers—have not been powerful-enough incentives to quit.” The Times article in particular focused on hospitals and medical businesses, noting that “hospitals in Florida, Georgia, Massachusetts, Missouri, Ohio, Pennsylvania, Tennessee and Texas, among others, stopped hiring smokers in the last year and more are openly considering the option.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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