My boss wants to have a truly smoke-free workplace, and he doesn’t want to hire people who smoke. Can we do that? — HR Manager in Oxnard
The short answer is yes, you can refuse to hire smokers. California law protects employees from demotion, suspension, or discharge for lawful conduct occurring off the job during nonwork hours, but no such protection exists for hiring.
Employees who smoke are unquestionably more expensive than employees who don’t smoke. Each employee who smokes costs an employer an extra $1,000 to $5,000 per year. That’s because smokers tend to consume more in healthcare costs, are absent more often, and are less productive than their nonsmoking co-workers. According to W. Smith Chandler, MD, SPHR, an occupational medicine physician, smokers even have more accidents than nonsmokers. Chandler says the primary determinant of a person’s probability of having an accident is his or her philosophy about risk-taking—and choosing to smoke is associated with a more risk-taking personality type.
However, even finding out if someone is a smoker is a tricky matter under California’s strict privacy laws. Asking an applicant flat-out may not get you an honest answer. Smelling smoke on an applicant may mean that he or she smokes, but it could also just mean that the person lives with a smoker. There are tests that measure a person’s nicotine levels, but they can show false positives if the person is exposed to a lot of secondhand smoke—and it’s not entirely clear if the tests are legal in the employment context.
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Additionally, even though it’s legal to refuse to hire smokers, you cannot fire someone because he or she took up the habit while working for you. And an across-the-board refusal to hire smokers eliminates a large pool of potentially valuable talent.
A better path might be a comprehensive plan to make your workplace environment inhospitable to smoking. You can sponsor smoking-cessation programs and also make as much of your property as possible smoke-free. Depending on your property’s size, this can be a powerful incentive for smoking employees to quit as well as a deterrent to attracting applicants who smoke.
The California Department of Health Services maintains a California Smokers’ Helpline, with information available in six languages, at (800) NO-BUTTS ((800) 662-8887). Visit the California Smokers’ Helpline for more on local resources or to download printed material. The American Lung Association of California also offers cessation resources.