Twenty-nine states and the District of Columbia have laws in effect elevating smokers to a protected class. The American Lung Association does not support these types of laws.
| State | Year | Citation |
|---|---|---|
| California | 2005 | CA LABOR CODE §§ 96(k) (1999) & 98.6 (2005). |
| No person shall discharge an employee or in any manner discriminate against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including lawful conduct occurring during nonworking hours away from the employer's premises. An aggrieved individual shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer. This does not apply to a collective bargaining agreement or contract that protects an employer against any conduct that is actually in direct conflict with the essential enterprise-related interests of the employer and where breach of that contract would actually constitute a material and substantial disruption of the employer's operation; and a firefighter against any disease that is presumed to arise in the course and scope of employment, by limiting their consumption of tobacco products on and off the job. This law also does not apply to employers with fewer than five employees, religious organizations and corporations not organized for private profit. | ||
| Colorado | 1990 | COLO. REV. STAT. § 24-34-402.5 (1990). |
| It shall be a discriminatory or unfair employment practice for any employer to terminate the employment of any employee due to that employee engaging in any lawful activity off the premises of the employer during non-work hours unless such a restriction relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest. The sole remedy for a person claiming to be aggrieved by this section is a civil suit for damages. | ||
| Connecticut | 2003 | CT GEN. STAT. ANN. § 31-40s (2003). |
| No employer or agent of any employer shall require, as a condition of employment that any employees or prospective employees refrain from using tobacco products outside the course of their employment, or otherwise discriminate with respect to compensation, terms, conditions or privileges of employment. Any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section. | ||
| Illinois | 1987 | 820 ILL. COMP. STAT. 55/5 (1987). |
| It shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours. This does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public; or to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties. It is also not a violation for an employer to offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products provided that differential premium rates charged employees reflect a differential cost to the employer; and employers provide employees with a statement delineating the differential rates used by insurance carriers. | ||
| Indiana | 2006 | IND. CODE §§ 22-5-4-1 et seq. (2006). |
| An employer may not require, as a condition of employment, an employee or prospective employee to refrain from using tobacco products outside the course of the employee's or prospective employee's employment. An employer also may not discriminate against an employee with respect to compensation and benefits, or terms and conditions of employment based on the employee’s or prospective employee's use of tobacco products outside the course of employment. However, an employer may implement financial incentives intended to reduce tobacco use, and related to employee health benefits provided by the employer. An employee or prospective employee may bring civil action against the employer to enforce this law. This does not apply to an employer that is a church, a religious organization, or a school or business conducted by a religious organization. | ||
| Kentucky | 2010 | KY REV. STAT. ANN. § 344.040 (2010). |
| It is an unlawful practice for an employer to: fail or refuse to hire, or to discharge any individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment because the individual is a smoker or nonsmoker; limit, segregate, or classify employees in any way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect their status as an employee because the individual is a smoker or nonsmoker; or 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. A difference in employee contribution rates for smokers and nonsmokers in relation to an employer-sponsored health plan or the offering of incentives or benefits offered by an employer to employees who participate in a smoking cessation program shall not be deemed to be an unlawful practice in violation of this section. | ||
| Louisiana | 1991 | LA REV. STAT. ANN. § 23:966 (1991). |
| As long as an individual, during the course of employment, complies with applicable law and any adopted workplace policy regulating smoking it shall be unlawful for an employer to discriminate against the individual with respect to discharge, compensation, promotion, any personnel action or other condition, or privilege of employment because the individual is a smoker or nonsmoker or require, as a condition of employment, that the individual abstain from smoking or otherwise using tobacco products outside the course of employment. Any employer who violates the provisions of this law shall be fined up to $250 for the first offense and up to $500 for any subsequent offenses. | ||
| Maine | 1991 | ME REV. STAT. ANN. tit. 26, § 597 (1991). |
| An employer or an agent of an employer may not require, as a condition of employment, that any employee or prospective employee refrain from using tobacco products outside the course of their employment or otherwise discriminate against any person with respect to the person's compensation, terms, conditions or privileges of employment for using tobacco products outside the course of employment as long as the employee complies with any workplace policy concerning the use of tobacco. | ||
| Minnesota | 1992 | MINN. STAT. § 181.938 (1992). |
| An employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, including tobacco, off the premises of the employer during non-work hours. It is not a violation for an employer to restrict the use of lawful consumable products by employees during nonworking hours if the employer's restriction relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees; or is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer. It is also not a violation for an employer to refuse to hire an applicant or discipline or discharge an employee who refuses or fails to comply with the conditions established by a chemical dependency treatment or aftercare program; for an employer to offer, impose, or have in effect a health or life insurance plan that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employee's use of lawful consumable products, provided that, to the extent that different premium rates are charged to the employees, those rates must reflect the actual differential cost to the employer; and for an employer to refuse to hire an applicant or discipline or discharge an employee on the basis of the applicant's or employee's past or present job performance. The remedy for a violation is a civil action for damages limited to wages and benefits lost by the individual because of the violation. | ||
| Mississippi | 1994 | MISS. CODE ANN. § 71-7-33 (1994). |
| It is unlawful for any public or private employer to require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during non-work hours, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours. | ||
| Missouri | 1992 | MO. REV. STAT. § 290.145 (2005). |
| It shall be an improper employment practice for an employer to refuse to hire, to discharge, or to otherwise disadvantage any individual with respect to compensation, terms or conditions of employment because the individual uses lawful tobacco products off the premises of the employer during hours such individual is not working for the employer, unless such use interferes with the duties and performance of the employee, the employee's coworkers, or overall business operation; except that, nothing in this section shall prohibit an employer from providing or contracting for health insurance benefits at a reduced premium rate for employees who do not smoke or use tobacco products. Religious organizations and nonprofit health promotion organizations are exempt from this section. The provisions of this section shall not be deemed to create a cause of action for injunctive relief, damages or other relief. | ||
| Montana | 1993 | MONT. CODE ANN. §§ 39-2-313 & 39-2-314 (1993). |
| An employer may not refuse to employ or license and may not discriminate against an individual with respect to compensation, promotion, or the terms, conditions, or privileges of employment because the individual legally uses a lawful product off the employer’s premises during non-work hours. This does not apply to use of a lawful product that affects in any manner an individual's ability to perform job-related employment responsibilities or the safety of other employees, or conflicts with a bona fide occupational qualification that is reasonably related to the individual's employment; an individual who, on a personal basis, has a professional service contract with an employer and the unique nature of the services provided authorizes the employer, as part of the service contract, to limit the use of certain products; or an employer that is a nonprofit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. However, an employer may offer, impose, or have in effect a health, disability, or life insurance policy that makes distinctions between employees for the type or price of coverage based on the employees’ use of a product with stipulations. The person against whom a violation is committed may file a civil action against an employer within one year of the alleged violation. Prior to filing a civil action, an employee shall within 120 days of the alleged violation, initiate any internal grievance procedure available. If a grievance procedure is not exhausted within 120 days, the employee may file a civil action. | ||
| Nevada | 1991 | NEV. REV. STAT. § 613.333 (1991). |
| It is an unlawful employment practice for an employer to fail or refuse to hire a prospective employee or discharge or otherwise discriminate against any employee concerning their compensation, terms, conditions or privileges of employment, because they engage in the lawful use in this state of any product outside the premises of the employer during non-working hours, if that use does not adversely affect their ability to perform their job or the safety of other employees. Any wages and benefits lost as a result of a violation may be recovered by civil action. | ||
| New Hampshire | 1991 | N.H. REV. STAT. ANN. § 275:37-a (1991). |
| No employer shall require as a condition of employment that any employee or applicant for employment abstain from using tobacco products outside the course of employment, as long as the employee complies with any workplace smoking policy. | ||
| New Jersey | 1991 | N.J. STAT. ANN. §§ 34:6B-1 et seq. (1991). |
| No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to employment, including the responsibilities of the employee or prospective employee. An aggrieved person may institute a civil action within one year from the date of the alleged violation. The Commissioner of Labor may collect a civil penalty imposed against the employer of an amount up to $2,000 for the first violation and $5,000 for each subsequent violation. | ||
| New Mexico | 1991 | N.M. STAT. ANN. §§ 50-11-1 et seq. (1991). |
| It is unlawful for an employer to refuse to hire or discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual is a smoker or non-smoker, provided that the individual complies with applicable laws or policies regulating smoking on the premises of the employer during working hours. It is also unlawful for an employer to require as a condition of employment that any employee or applicant for employment abstain from using tobacco products during non-working hours. This does not apply to any activity that materially threatens an employer's legitimate conflict of interest policy reasonably designed to protect the employer's trade secrets, proprietary information or other proprietary interests; or relates to a bona fide occupational requirement and is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer. Any employee claiming to be aggrieved by any unlawful action of any employer may bring a civil suit for damages. | ||
| New York | 1992 | N.Y. [LABOR] LAW § 201-d (1992). |
| It shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion, or terms, conditions or privileges of employment because of an individual’s legal use of consumable products prior to the beginning or after the conclusion of the employee’s work hours and off of the employer’s premises and without use of the employer’s equipment or property. This does not apply to activities that create a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest; state employees when the activity could conflict with performance of their official duties under specified circumstances; and when the activity is in violation of a collective bargaining agreement. This shall not prohibit an organization or employer from offering, imposing or having in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' recreational activities or use of consumable products, provided that differential premium rates charged employees reflect a differential cost to the employer and that employers provide employees with a statement delineating the differential rates used by the carriers providing insurance for the employer, and provided further that such distinctions in type or price of coverage shall not be utilized to expand, limit or curtail the rights or liabilities of any party with regard to a civil cause of action. The attorney general may apply for an order enjoining or restraining the commission or continuance of the alleged unlawful acts. The court may impose a civil penalty in the amount of $300 for the first violation and $500 for subsequent violations. An aggrieved individual may commence an action for equitable relief and damages as well. | ||
| North Carolina | 1991 | N.C. GEN. STAT. § 95-28.2 (1991). |
| It is an unlawful employment practice for an employer to fail or refuse to hire a prospective employee, or discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the prospective employee or the employee engages in or has engaged in the lawful use of lawful products if the activity occurs off the premises of the employer during non-working hours and does not adversely affect the employee’s job performance or the person’s ability to properly fulfill the responsibilities of the position in question or the safety of the other employees. It is not unlawful if the restriction relates to a bona fide occupational requirement and is reasonably related to the employment activities; if the restriction relates to the fundamental objectives of the organization; or if the employee fails to comply with the requirements of the employer's substance abuse prevention program. This section shall not prohibit an employer from offering, imposing, or having in effect a health, disability, or life insurance policy distinguishing between employees for the type or price of coverage based on the use or nonuse of lawful products if differential rates assessed employees reflect actuarially justified differences in the provision of employee benefits; the employer provides written notice to employees setting forth the differential rates imposed by insurance carriers; and the employer contributes an equal amount to the insurance carrier on behalf of each employee of the employer. The employee against whom the violation occurs may bring a civil action within one year from the date of the alleged violation against the employer to obtain lost wages or benefits, an order of reinstatement without loss or position, seniority, or benefits or an order directing the employer to offer employment to the prospective employee. | ||
| North Dakota | 1993 | N.D. CENT. CODE §§ 14-02.4-01 et seq. (1993). |
| It is discriminatory practice for an employer to fail or refuse to hire a person; to discharge an employee; or accord adverse or unequal treatment to a person or employee with respect to application, hiring, training, apprenticeship, tenure, promotion, upgrading, compensation, layoff, or a term, privilege, or condition of employment, because of participation in lawful activity off the employer’s premises during non-working hours which is not in direct conflict with the essential business-related interests of the employer. It is also a discriminatory practice for an employer, employment agency, or labor organization, or the employees, agents, or members thereof directly or indirectly to advertise or in any other manner indicate or publicize that individuals who participate in lawful activity off the employer's premises during nonworking hours which activity is not in direct conflict with the essential business-related interests of the employer, are unwelcome, objectionable, not acceptable, or not solicited. | ||
| Oklahoma | 2013 | OKLA. STAT. ANN. tit. 40, §§ 500 to 503 (2013). |
| It is unlawful for an employer to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions, or privileges of employment because the individual is a nonsmoker or smokes or uses tobacco products during non-working hours or require as a condition of employment that any employee or applicant abstain from tobacco use during non-working hours. However, nothing in this section shall prohibit an employer from offering incentives to an employee to participate in wellness programs, including, but not limited to, smoking cessation programs, in conjunction with the employer providing the employee health insurance coverage. This also shall not apply when the restriction on smoking relates to a bona fide occupational requirement or an applicable collective bargaining agreement which prohibits or allows off-duty use of tobacco products. The sole remedy for any individual claiming to be aggrieved by a violation of this law shall be a civil action for damages, including all wages and benefits deprived the individual by reason of the violation. | ||
| Oregon | 2005 | OR. REV. STAT. §§ 659A.315 & 659A.885 (2005). |
| It is an unlawful employment practice for any employer to require, as a condition of employment, that any employee or prospective employee refrain from using lawful tobacco products during non-working hours, except when the restriction relates to a bona fide occupational requirement. This section does not apply if an applicable collective bargaining agreement prohibits off-duty use of tobacco products. A civil action may be filed in circuit court for a violation. | ||
| Rhode Island | 2005 | R.I. GEN. LAWS § 23-20.10-14 (2005). |
| No employer or agent of any employer shall require, as a condition of employment, that any employee refrain from smoking or using tobacco products outside the course of their employment, or otherwise discriminate against an individual with respect to their compensation, terms, conditions or privileges of employment for such use. The court may award up to three times the actual damages to a prevailing employee or prospective employee. Nonprofit organizations which as one of their primary purposes or objectives discourage the use of tobacco products by the general public are exempt from this law. | ||
| South Carolina | 1991 | S.C. CODE ANN. § 41-1-85 (1991). |
| The use of tobacco products outside the workplace must not be the basis of personnel action, including, but not limited to, employment, termination, demotion, or promotion of an employee. No specific penalties specified for violation. | ||
| South Dakota | 1991 | S.D. CODIFIED LAWS § 60-4-11 (1991). |
| It is a discriminatory or unfair employment practice for an employer to terminate the employment of an employee due to that employee’s engaging in any use of tobacco products off the premises of the employer during non-working hours unless such a restriction relates to a bona fide occupational requirement or it is necessary to avoid a conflict of interest with the responsibilities of the employer. The sole remedy for a person claiming to be aggrieved by a violation of this law shall be a civil suit for damages including all wages and benefits lost. Health or life insurance policies may make a distinction between employees for the type or cost of coverage based upon the employees’ use of tobacco products. | ||
| Tennessee | 1990 | TENN. CODE ANN. § 50-1-304 (1990). |
| No employee, including employees of state and local government, 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 such employee participates or engages in such use in a manner which complies with all applicable employer policies regarding such use during times at which such employee is working; and/or if such employee participates or engages in such activity during times when such employee is not working. This section shall not be used for frivolous lawsuits, and anyone trying to do so is subject to sanction. | ||
| Virginia | 1989 | VA. CODE ANN. § 2.2-2902 (1989). |
| No employee of or applicant for employment with the Commonwealth or any of its political subdivisions shall be required, as a condition of employment, to smoke or use tobacco products on the job, or to abstain from smoking or using tobacco products outside the course of their employment, provided that this section shall not apply to specified classes of employees. | ||
| West Virginia | 1992 | W. VA. CODE § 21-3-19 (1992). |
| It shall be unlawful for any public or private employer to refuse to hire any individual or to discharge any employee or otherwise disadvantage or penalize any employee with respect to compensation, terms, conditions or privileges of employment solely because such individual uses tobacco products off the premises of the employer during non-working hours. This section does not apply to a nonprofit organization, which, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public. An employer may offer a health, disability or life insurance policy that makes distinctions between employees for type or price of coverage based on the employee's use of tobacco products provided, that any differential premium rates charged to employees must reflect differential costs to the employee and provided, that the employer must provide employees with a statement delineating the differential rates used by its insurance carriers. | ||
| Wisconsin | 1991 | WIS. STAT. §§ 111.31 et seq. (1991). |
| No employer, labor organization, employment agency, licensing agency or other person may engage in any act of employment discrimination against any individual on the basis of use or nonuse of lawful products off the employer's premises during non-working hours. This section does not apply to nonprofit corporations that, have as one of their primary purposes or objectives the encouragement or discouragement of the general public from using this lawful product. It is acceptable for employers to offer a life, health or disability insurance policy under which the type or price of coverage varies for employees based on their usage of this lawful product when the policy meets certain conditions. | ||
| Wyoming | 1992 | WYO. STAT. ANN. §§ 27-9-101 et seq. (1992). |
| It is a discriminatory or unfair employment practice for an employer to require as a condition of employment that any employee or prospective employee use or refrain from using tobacco products outside the course of their employment, or otherwise to discriminate in matters of compensation or the terms, conditions or privileges of employment, unless it is a bona fide occupational qualification that a person not use tobacco products outside the workplace. This shall not prohibit an employer from offering, imposing or having in effect a health, disability or life insurance policy distinguishing between employees for type or price of coverage based upon the use or nonuse of tobacco products, with certain conditions. Any person claiming to be aggrieved by a discriminatory or unfair employment practice may file a complaint with the Department of Employment within 90 days of the alleged violation. The department may order the respondent to hire, reinstate or upgrade the employee, with or without back pay. |
Page last updated: May 2, 2024
