No Smoking — Anywhere!

A high percentage of employers have workplace smoking policies. Most of these policies say that employees can’t smoke in the workplace, on the premises, in company vehicles or can smoke only in restricted areas. So, in the winter, it’s not uncommon to see a dwindling number of smokers huddled outside an office building trying to stay warm while satisfying a much-scorned addiction. Indeed, smokers are the lepers of the 21st century.

A Tennessee hospital has recently adopted a policy under which it will no longer hire smokers. If smokers are already working for the hospital, they won’t be affected by the policy. This isn’t the first employer to have such a policy. The legalities of this kind of policy are uncertain, at least in some states. The possible problem, to use the parlance of old time labor law, is that an employer is trying to control an employee’s off-duty conduct – something an employer can’t traditionally do, as long as the conduct is legal. Smoking may be despised, but it’s not illegal.

The issue is particularly interesting in Tennessee because of Tennessee Code Annotated, Section 50-1-304, which reads in part as follows: “No employee shall be discharged or terminated solely for participating or engaging in the use of an agricultural product not regulated by the alcoholic beverage commission that is not otherwise proscribed by law, if the employee participates or engages in the use in a manner that complies with all applicable employer policies regarding the use during times at which the employee is working.”

So, an employer can have workplace policies restricting or even banning smoking at work, but an employee can’t be fired for using an “agricultural product” away from the workplace. Though smoking or tobacco isn’t mentioned, the statute was clearly enacted at the behest of the tobacco lobby in Tennessee, a state which still has its share of tobacco farmers.

While in existence for a long time, there isn’t, as far as I know, any case interpreting this statute. When I’ve been asked whether this statute would prohibit an employer from refusing to hire smokers, I’ve said that, in my opinion, it doesn’t, because of the statute’s wording. It speaks in terms of discharge or termination but says nothing about hiring. Reading the statute narrowly, therefore, it seems to me that while an employer can’t fire someone who smokes, it can refuse to hire someone who smokes.

This subject often sets off a firestorm of debate. Some view this as strictly a personal matter — particularly when talking about what an employee does away from work. Others feel just as strongly that an employer, especially a health care provider, should be able to do all that it can to restrict an activity that’s so clearly deleterious to one’s health.

Unless health care reform passes and it contains something on this subject, there is no federal law that controls an employer’s workplace smoking policy. State laws, to the extent there are any, would control.

Is smoking completely down and out as far as the workplace is concerned? Time will tell.