Smoking Discrimination in the Workplace: On and Off the Clock
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Identify major issues with smoking discrimination and understand how they can impact policy discussions and implementation in the workplace.
Employers have multiple issues to address that concern or involve the health of their employees. Employees have privacy interests, in addition to their own interests in preserving and improving their health. All of these interests, and more, arise within the context of nonsmoking policies used within the workplace. This content focuses on situations where employees may claim discrimination or violations of their privacy rights related to their lifestyle choices when disciplined or terminated for smoking tobacco. In addition, this topic will review the duty of employers to provide a safe workplace and the connection between that obligation and the drafting and application of nonsmoking policies in the workplace. This material will also review current trends regarding employer incentives to have employees reduce or quit smoking. The legal nature of tobacco calls for an in-depth discussion, the terms of which may soon apply to other currently legal products that employees may use and other products that may be legalized in the future. This topic strives to identify the major issues that can impact such policy discussions and policy implementation at the workplace.
AuthorsAmbrose V. McCall, Hinshaw & Culbertson LLP
Current Status of Smoking Technologies - New and Old Forms of Consuming Tobacco
• Cigarettes Including E-Cigarettes and Smokeless Cigarettes
• Chewing Tobacco and Snuff Tobacco
• Cigars and Pipes
• Recent FDA and State Agency Actions on Tobacco
Overview of Constitutionality of Smoking Restrictions Imposed by Governmental Entities on Smoking in Public Places and Their Relation to the Workplace
• Equal Protection, Due Process, Liberty and First Amendment Interests
• Scope of Authority of States and Local Authorities to Exercise Regulatory Authority
• Extent That Constitutional Interests Impact Private Business Premises and Work Rules
Employer's Potential Exposure for Failing to Provide Smoke-Free Workplace
• Employer Duties to Provide Safe Workplace
• Negligence and Intentional Infliction of Emotional Distress Theories
• Disability Discrimination Claims
• Breach of Contract and Other Legal Theories
• OSHA - Agency History on Tobacco and 29 CFR 1910.1000 on Air Contaminants
• State Indoor Air Regulations
• Screening for Smokers
• Incentives for Employees to Quit Smoking
• Wellness Programs
• Is Nicotine Addiction a Disability Under the ADA or State Disability Discrimination Laws?
• Can Employees Show That Denial of Nicotine Substantially Limits a Major Life Activity?
• Do State Laws Granting Right to Use Lawful Products Include Smoking or Consuming Tobacco?
• Can Employees Claim Violations of State Privacy Laws, Violations of Invasion of Privacy Tort Doctrines or Lifestyle Discrimination?
• Common Law Tort Actions Over Privacy Including Intrusion Upon Seclusion and False Light
• Collective Bargaining Agreement Provisions on Tobacco Use
Employer Application of Nonsmoking Policies
• Consistency and Reasonableness
• Alleged Unequal Application of Nonsmoking Policies in Discrimination Cases
Sample Nonsmoking Policies