Off-Duty Conduct Protections
November 9, 2017
We were recently asked our opinion on offering additional PTO days for non-smoking employees to offset the time that smokers take in “smoke breaks”. You may have heard about the Japanese company that has instituted this policy.
From an HR Perspective:
Existing anti-discrimination laws do not prohibit employers from discriminating based on whether or not the person is a smoker–even the PPACA has allowed for premium contribution differences based on smoking.
Then to consider protections under the ADA and while not explicitly addressed, most courts (at this time) have ruled that ADA protections do not extend to tobacco or nicotine addicts.
29 states do prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco.
We have not seen any clients implement or consider such a policy and would caution against such a practice at this time. It may ‘fly’ but I would not want to be the first.
From a Legal Perspective:
We then posed the same question to an attorney that we work with. Here’s her input:
Bad idea in certain states. As you noted already there are a number of states which prohibit discrimination due to off-duty legal conduct which includes smoking. For example, in NJ the law provides:
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 the employment, including the responsibilities of the employee or prospective employee.
In these states, a plaintiff’s attorney will easily take the position that giving non-smokers addition leave time is discriminatory towards non-smokers.
Of course not all states have these laws such as in PA. In the states that do not have the laws regarding off-duty conduct, it would be permissible as there would be no such legal protection for smokers v. non-smokers. However, I would think such a policy may not do much for employee morale and there would be an easier way such as regulating breaks and permitting the same number of breaks for all employees, etc.