Keith Mack
Smoking is the leading cause of preventable death in the United States, causing approximately 480,000 deaths each year. While there is no constitutional right to smoke, smoker protection laws in the United States prevent employers from discriminating against employees for using tobacco products. However, these laws vary from state to state, and smokers are not considered a protected class under federal law. This has led to a complex interplay between state and federal regulations, with some states offering no legal protection for smokers, allowing employers to implement anti-smoking restrictions without fear of discrimination claims. This raises the question of whether anti-smoking laws are discriminatory towards smokers.
| Characteristics | Values |
|---|---|
| Smoking laws | There is no constitutional right to smoke |
| Smoker protection laws | Prevent employers from discriminating against employees for using tobacco products |
| Number of states with smoker protection laws | 29 states and the District of Columbia |
| Federal law | Allows employers to prohibit smoking in the workplace and refuse to hire smokers |
| State laws | Differ from federal law; some protect smokers, others do not |
| Smoke-free laws | Are rationally related to a legitimate government goal of protecting public health |
| Exceptions to smoke-free laws | Private clubs, private residences, retail tobacco stores, etc. |
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What You'll Learn
Smokers are not a protected class under federal law
The argument has been made that the 1990 Americans with Disabilities Act, which considers alcoholics or recovering alcoholics as disabled, could be extended to tobacco users. However, this argument has not gained widespread support, and courts have not interpreted tobacco use as a disability. Additionally, even if tobacco users were covered under the ADA, it would only apply to those who are addicted and not to occasional smokers.
The U.S. Constitution does not provide a special right to smoke. While it lays out a set of civil rights that are protected, smoking is not included as one of those rights. As a result, federal and state constitutions allow for smoke-free laws that are rationally related to a legitimate government goal, such as protecting public health by minimizing the dangers of tobacco smoke.
While smoker protection laws exist in many states, they do not create a right to smoke. Instead, they assure smokers that their employers will not consider their off-duty tobacco use when making employment decisions. However, these laws vary from state to state, and some states have no specific laws related to employee tobacco use. In these states, smokers may be protected under broader state statutes that prohibit discrimination against employees engaging in lawful activities.
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Smoker protection laws
In states without smoker protection laws, some employers have started refusing to hire new employees who smoke. While many employers use an honor system, some require nicotine tests. Many of these businesses are in the healthcare industry, but some county and municipal governments have also implemented such policies. For example, Arizona previously had a smoker protection law, but it was repealed in 2007.
On the other hand, four states (California, Colorado, New York, and North Carolina) do not have specific laws related to employee tobacco use. However, smokers in these states are protected under broader statutes prohibiting discrimination against employees engaging in lawful activities. California's law, for instance, has been interpreted as not creating new rights but setting a process for pursuing claims for violations of existing Labor Code protections.
While smoker protection laws aim to prevent discrimination against smokers, they do not override public health considerations. For instance, New York's Clean Indoor Air Act prohibits smoking and vaping in most workplaces, including indoors and on public transportation, to protect workers and the public from harmful secondhand smoke and vape.
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Smoke-free laws and government goals
Smoke-free laws are enacted to further the legitimate government goal of protecting public health by minimizing the dangers of tobacco smoke. There is no constitutional right to smoke in the US, and smoke-free laws do not violate the federal Constitution as long as they are rationally related to this legitimate government goal.
The US Centers for Disease Control and Prevention estimates that secondhand smoke kills about 19,600 people in the US each year, with a significantly higher number of deaths worldwide. The US Surgeon General and public health agencies have documented the deadly effects of secondhand smoke, which causes lung cancer, heart disease, and stroke in non-smoking adults, and sudden infant death syndrome, low birth weight, respiratory and ear infections, and severe asthma attacks in babies and children. There is no safe level of exposure to secondhand smoke, and even brief exposure can increase the risk of heart attack or stroke.
Smoke-free laws aim to protect everyone's right to breathe clean air, and eliminating smoking in indoor spaces is the only way to fully protect non-smokers from secondhand smoke exposure. Comprehensive smoke-free laws have been enacted in 28 states, Washington, D.C., Puerto Rico, the US Virgin Islands, and hundreds of cities and counties in the US. These laws cover workplaces, restaurants, and bars, and in some cases, casinos. However, progress has stalled in recent years, with 22 states yet to approve comprehensive smoke-free workplace laws.
Smoke-free laws are not limited to traditional tobacco products, with 19 states and the District of Columbia including e-cigarettes in their comprehensive smoke-free laws. The Family Smoking Prevention and Tobacco Control Act, signed into law in 2009, gives the FDA authority to regulate the manufacture, distribution, and marketing of tobacco products to protect the public health of the US population. This includes specific restrictions on marketing tobacco to children and requirements for larger and more visible warnings on smokeless tobacco packages and advertisements.
In conclusion, smoke-free laws are closely tied to the government's goal of protecting public health and reducing the harmful effects of secondhand smoke exposure. By enacting and enforcing these laws, the government aims to create a healthier future for all citizens, particularly those who are vulnerable to the deadly consequences of secondhand smoke.
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Discrimination against smokers in the workplace
However, to address this discrimination, twenty-nine states and the District of Columbia have enacted smoker protection laws that prevent employers from discriminating against employees for using tobacco products. These laws vary across states but generally prohibit employers from refusing to hire or firing an employee for using tobacco products during non-working hours and off the employer's property. For instance, in California, smokers are protected under broader state statutes that prohibit employers from discriminating against employees who engage in lawful activities outside the workplace.
Despite these protections, smokers may still face indirect discrimination in the workplace due to health-related concerns. Smokers may be required to pay higher premiums for company health insurance, and some workplaces have banned e-cigarettes and smoking areas to protect non-smokers from the health hazards of secondhand smoke. While these measures may be justified by the legitimate goal of protecting public health, they can also restrict the freedoms of smokers during their personal time.
Ultimately, the issue of discrimination against smokers in the workplace is a delicate balance between protecting individuals' rights and ensuring a safe and healthy work environment for all employees. While smoker protection laws aim to reduce direct discrimination, indirect forms of discrimination persist due to the recognised health risks associated with smoking. As a result, smokers may continue to face challenges and stigmatisation in certain workplaces, particularly in industries with heightened health considerations, such as healthcare.
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State smoking bans
In the United States, 28 states, Washington, D.C., Puerto Rico, the U.S. Virgin Islands, and Guam have enacted comprehensive smoke-free laws covering workplaces, bars, and restaurants. These include Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Utah, Vermont, Washington, and Wisconsin.
Some states have more specific laws. For example, in California, Connecticut, Delaware, Hawaii, Maine, New Jersey, North Dakota, Oregon, Utah, and Vermont, the use of e-cigarettes is prohibited indoors. In Arkansas, the Clean Indoor Air Act of 2006 bans smoking in most enclosed workplaces, with several exceptions, including private residences, designated smoking rooms in hotels and motels, retail tobacco stores, outdoor areas, and bars and restaurants that do not allow patrons under the age of 21.
The enactment of these laws is based on scientific evidence that secondhand smoke causes serious diseases and premature death among non-smokers. Public health authorities have concluded that the only way to protect non-smokers from secondhand smoke is to require completely smoke-free workplaces and public places. Other approaches, such as air ventilation systems and separate smoking sections, have been found to be ineffective in eliminating exposure to secondhand smoke.
Despite the growing number of smoke-free laws, there has been some pushback from smokers claiming that these laws are discriminatory. In a 2004 New York case, a plaintiff argued that smoke-free laws violated the Equal Protection Clause of the U.S. Constitution, stating that they classified smokers as "second-class citizens." However, the court rejected this claim, stating that such laws do not offend the Equal Protection Clause, as there is no constitutional right to smoke.
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Frequently asked questions
No, anti-smoking laws are not discriminatory. Smokers are not a protected class under federal law, meaning anti-discrimination employment laws do not cover them. Federal law allows employers to refuse to hire smokers and ban employees from smoking outside of work hours, including in their own homes. However, state laws sometimes differ, and 29 states have laws that offer some form of protection for smokers.
Smoker protection laws are state statutes that prevent employers from discriminating against employees for using tobacco products. These laws vary from state to state, but they generally prohibit employers from refusing to hire or firing an employee for using tobacco products during non-working hours and off the employer's property.
Yes, employers can legally discriminate against smokers in states without smoker protection laws. In these states, employers can establish any kind of anti-smoking restriction or policy without fear of a discrimination claim. However, employers should be aware of both federal and state policies before implementing such restrictions.
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