Kentucky Injury Law Blog

Many states have passed or are passing laws that prohibit smoking in public places, including restaurants, universities, airports, and hospitals. These laws have been enacted mainly to protect non-smokers from the effects of second-hand smoke. It also allows them to enjoy public places without smelling smoke or having their hair or clothes smell of smoke. Many businesses, even if not covered by state laws, are becoming smoke-free as well for the same reasons. Some places of employment, however, may be taking the smoke-free workplace a little too far.

About 6,000 businesses around the country have adopted “no-nicotine” policies, which not only prohibit smoking at the place of business, but also prohibit the hiring of smokers or other tobacco users. Most employers hope to save health insurance costs and some believe they will have a healthier, more productive staff by not hiring smokers. A few companies may be trying to encourage potential employers to either quit using tobacco or convince them not to start smoking in the first place. One justification given by hospitals and other medical providers is that they should be setting a healthy example for their clients, and having employees smoking outside a medical building sends the wrong message.

While federal law does not protect smokers, 29 states have instituted laws that make this selective hiring illegal. In 1994, Kentucky included smokers as a group that could not be discriminated against in hiring or other employment decisions. KRS 344.040 states, “It is an unlawful practice for an employer…To require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products outside the course of employment, as long as the person complies with any workplace policy concerning smoking.” More recently, Indiana passed a similar law.

Kentucky employees who use tobacco products are protected in some ways, but the law does not prohibit companies from charging them more for their health insurance. Employees who smoke may also be offered certain incentives to encourage them to quit smoking.

While encouraging people to make healthy choices and saving companies money on health insurance may seem beneficial, there are other issues. In this economy, many people are having a difficult time finding work, and someone who is very qualified may be denied a job simply because they use tobacco products. An employer would not know if a potential or current employee is using tobacco products when he is not at work unless the employer requires testing or watches an employee while he is off the clock. This sounds a little extreme, especially since it is perfectly legal for adults to use tobacco products. If companies are not hiring tobacco users to cut insurance costs, will they also not hire people who eat too much cholesterol because they may have heart issues or those who indulge in too much sugar because they may have diabetes? The list could go on and on.