Job advertisements that ask for non-smokers are becoming commonplace as more employers implement smoke-free workplaces. As an employer, you may want to hire non-smokers only to improve workplace productivity and maintain a professional image for clients or customers. However, can you refuse to hire smokers without breaching anti-discrimination laws?

This article sets out your legal obligations and how you can accommodate smokers in your workplace.

Is Smoking Covered Under Anti-Discrimination Laws?

Generally, you cannot treat anyone less favourably during the hiring process based on attributes protected under state and federal laws anti-discrimination laws. These attributes include:

  • gender;
  • sexual orientation;
  • family responsibilities;
  • age;
  • 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. The Fair Work Commission may fine you if the job candidate made a successful complaint.

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

One Australian case found that opioid addiction is a disability under federal disability discrimination laws. In that case, the man had been suffering from intense withdrawal symptoms while undergoing treatment with methadone. This description was enough to qualify the addiction as a disability.

However, it is not clear if addiction to legal drugs such as nicotine would be covered under anti-discrimination laws. No judge or law has yet recognised nicotine addiction as a disability.

Therefore, under the current law, smokers do not have protection under anti-discrimination laws. As an employer, you would not be breaking any laws if you refuse to hire non-smokers, or advertise for non-smokers only.

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, you may want your employees to be well groomed as part of company policy. Smoking creates an unpleasant odour, while nicotine staining on teeth 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 at all times. Otherwise, customers or clients may not want to do 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 every year, 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

Smoking is just one of many attributes that a potential employee may have. While you can refuse to hire smokers, you may limit the talent pool for your business. From an equal opportunity employment (EEO) perspective, you may be better off developing internal policies to manage employees who do 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 in place and ask if that would be of concern. 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.

Your smoke-free workplace policy should clearly 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.

One Japanese employer offered extra annual leave to non-smokers as a way to compensate for the excessive time wasted on smoke breaks by smoking employees. While that may be an extreme step for your business, it is good to consider how to manage any disagreements from non-smoking employees.

Key Takeaways

Employers can legally refuse to hire smokers, but may risk missing out on great talent for their company. If possible, employers can develop specific policies to manage the needs of smoking employees while protecting others in the workplace. If you have any questions, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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