Can my employer threaten to fire us if we do not quit smoking?

By , J.D. · UC Berkeley School of Law


The owner of the company I work for just announced a new policy for the New Year: Any employee who smokes must quit within the next three months or be fired. Employees who smoke can sign up for smoking cessation programs to help them quit, which the company will pay for. But anyone who is still lighting up at the end of three months will lose their job. I enjoy an occasional cigarette, and I don't want to give it up. Is it legal for my employer to force me to quit? As long as I don't smoke in no-smoking areas at work, what business is it of my employer whether I choose to smoke?


Some employers have adopted policies that encourage (or coerce) employees to quit smoking in order to save money. Studies show that smokers are sick more often, which means they use more sick days and are more likely to utilize their health insurance. For employers who provide health benefits, this means higher premiums for the company. And, smokers tend to take more frequent breaks at work, as most workplaces across the country now don't allow smoking in indoor locations.

That answers your question of why employers might want to adopt this type of policy. But is it legal? It depends on your state's law. Federal law doesn't address whether employers can fire employees for smoking. In a number of states, however, it is illegal to fire an employee simply for being a smoker.

These laws, often called "off-duty conduct" laws or "lifestyle discrimination" laws, take several forms. In some states, such as California, employers are prohibited from taking action against employees for any lawful activities they choose to undertake in their own time, away from the work site. Some states, including Nevada, protect employees from discrimination for the lawful use of any product offsite during non-work hours. And, some states, like Connecticut, limit the protection to smoking or tobacco products. In these states, employees may not be fired for smoking or otherwise using tobacco, and they may not be required to quit as a condition of employment.

Your employer's decision to fire employees who don't quit smoking would violate these off-duty conduct laws, whether they apply just to tobacco or to anything an employee does off duty. However, if your state doesn't have an off-duty conduct law, your employer's policy change is likely legal. To find out whether your state has a law like this, select it from the list at Workplace Smoking Laws.

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