Can I be denied employment for smoking?

State law determines whether it's legal to discriminate against smokers. Employers who adopt policies like these say that they are only trying to save money and improve workplace morale. Smokers generally have higher-than-average health care costs and higher absenteeism rates than nonsmokers. Nonsmokers may complain about the quality of the air (whether inside the building, if smoking is allowed, or outside the entrances) and about the smoking breaks that their colleagues take.

Federal law doesn't address this issue, but a number of states prohibit employers from discriminating against smokers. These state laws take several forms:

• Some states prohibit employers from taking action against employees or applicants because they engage in any lawful activity outside of work. These laws protect smokers from job discrimination, but also protect those who engage in other risky off-duty endeavors, from rock climbing to volunteer firefighting.
• Some states protect an employee's or applicant's right to use lawful products off the job.
• Some states explicitly protect an employee's or applicant's right to smoke or use other tobacco products off the job.

If your state has any of these types of laws, an employer can limit an employee's on-site smoking but may not make job decisions based on an employee's or applicant's decision to smoke outside of work. To find out whether you are protected, select your state from the list in Workplace Smoking Laws in Your State.