I Am an Employer. Can I Refuse to Hire Smokers?

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Table of Contents

• Is Smoking Covered Under Anti-Discrimination Laws?
• Reasons for Not Hiring Smokers
• Why You Should Consider Hiring Smokers
• What Should I Include in My Workplace Policy?
• What If They Start Smoking After I Hire Them?
• Key Takeaways
• Frequently Asked Questions

More employers are implementing smoke-free workplaces for several reasons. For example, employers may hire non-smokers to improve workplace productivity, and maintain a professional image for clients or customers. However, refusing to hire smokers could lead to several complications. This article outlines your legal obligations and how you can accommodate smokers in your workplace, which includes smokers of non-nicotine electronic cigarettes (e-cigarettes).

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Is Smoking Covered Under Anti-Discrimination Laws?

Smokers do not have protection under the current law under anti-discrimination laws. Generally, you cannot treat anyone less favourably during hiring based on attributes protected under state and federal anti-discrimination laws. These attributes include:

• gender;
• race;
• sexual orientation;
• marital status;
• pregnancy;
• family responsibilities;
• age;
• religion;
• political opinion; or
• disability.

It would be discrimination if you interviewed a job candidate and refused to hire them based on one of the protected attributes. In this situation, the candidate may complain to Fair Work, the Australian Human Rights Commission or the relevant state or territory anti-discrimination body. 

However, smoking is not listed as a protected attribute under the laws. Nevertheless, smoking could be viewed as a disability because smokers could argue they are addicted to nicotine.

However, it is unclear if legal drug addiction like nicotine would be covered under anti-discrimination laws. This is because no judge or law has yet recognised nicotine addiction as a disability.

Reasons for Not Hiring Smokers

Firstly, you have a duty of care to provide a safe workplace for your employees. Smoking exposes others to secondhand smoke and can cause long-term health risks. Therefore, you could breach your duty of care if you allow smokers to light up in the workplace around other employees.

Secondly, your employees should be well groomed as part of company policy. Smoking creates an unpleasant odour, while nicotine staining and fingers may be off-putting. In client-facing industries such as personal care or sales, you may want your employees to look clean and professional. Otherwise, customers or clients may want to avoid doing business with you.

Thirdly, employees who smoke can be a financial liability. One US study has found regular smoke breaks can cost the company an average of $3,000 yearly, with at least $1,000 lost on sick days and lower productivity. These costs can add up over time for your business.

Why You Should Consider Hiring Smokers

While you can refuse to hire smokers, you may limit the talent pool for your business. As an equal employment opportunity employer (EEO), you may be better off developing internal policies to manage employees who smoke. This will ensure you are hiring the best people for the job.

If you are concerned about smoking, you can tell job candidates in interviews that the company has a smoke-free workplace policy and ask if that would be of concern. Then, if they are a smoker, you can find out if they are willing to comply with your policy. That way, you can avoid directly asking the job candidate if they smoke.

What Should I Include in My Workplace Policy?

Your smoke-free workplace policy should set out the rules for smokers in the workplace. For example, you can:

• direct employees to leave the office premises to smoke;
• set aside designated smoking areas within the office premises;
• encourage them to use mouthwash, gum or other personal hygiene tools to manage their cigarette smell;
• limit their smoke breaks throughout the day;
• encourage them to try non-smoking alternatives, such as nicotine gum or patches; or
• encourage them to quit smoking by providing information on Quitline or other resources.

What If They Start Smoking After I Hire Them?

You cannot terminate an employee simply because they are a smoker or have taken up smoking. Otherwise, your employee may be eligible to make an unfair dismissal claim against you. 

Nevertheless, you may be able to dismiss an employee if they do not adhere to your workplace’s smoke-free policy. In 2018, the Fair Work Commission determined that smoking at work can be a valid reason for dismissal when an employee is aware of but continues to breach a workplace policy wilfully. In this instance, it is important to make clear that you dismissed the worker not because they were a smoker but because they knew about the workplace policy concerning smoking and continued to breach it.

You should also ensure that your employee understands that you might take disciplinary action for non-compliance with the policy, up to and including termination of employment. You can include this disciplinary process in your smoke-free workplace policy.

Key Takeaways

Employers can legally refuse to hire smokers, but you should ensure you are not engaging in discriminatory conduct. Additionally, not hiring smokers means you risk missing out on great talent for your business. Nevertheless, employers can develop policies to manage smoking employees’ needs while protecting others in the workplace.

If you need help implementing a smoke-free workplace policy, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions