Question: We currently do not hire individuals who smoke tobacco, and we require them to take a test at time of hire to see if they have nicotine in their system. Is this a permissible practice?
Answer: Generally, it is a permissible practice, but it could still pose a legal issue. While it is illegal to discriminate against an applicant or employee because of that person’s race, color, religion, sex, national origin, age, disability, or genetic information, under federal law smokers are not a protected class. However, 29 states and the District of Columbia prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco. In these jurisdictions it may be illegal to reject applicants simply because they’re smokers.
However, even if you are in one of these jurisdictions, most of them have an exception to the law if the requirement is a bona fide occupational qualification. Where the rationale for excluding smokers from employment is consistent with the employer’s mission of providing a healthy work environment rather than due to a perception that smokers may have more health-related issues that may lead to increased insurance costs or absenteeism problems, a strong argument could be made that the job-relatedness exceptions could apply – unless prohibited by law.
If you are not in one of the jurisdictions that prohibits discrimination against smokers, and you choose to continue with this practice, consult with legal counsel.