Over the past few months, we have seen a number of articles about employers (mostly hospital and other medical businesses) announcing “Tobacco-Free” or “Non-Nicotine” hiring policies – meaning that that they will no longer hire smokers. While we are not here to analyze the health and societal benefits of these policies, the enactment of these types of policies raise the question whether such policies are legal in New York City. As readers of this blog know well, not all employment discrimination is unlawful; however, in the case of smokers, we have some good news because it is pretty clear that the law protects them against discrimination because of their status as a smoker.
New York Labor Law § 201-d
NYLL § 201-d(2)(b) makes it unlawful for an employer to discriminate against an individual/employee because of that individual’s “legal use of consumable products” during non-work hours. In fact, as one court has recognized in a case unrelated to discrimination against smokers:
History tells us that one of the primary motivations [in enacting NYLL 201-d] was to protect smokers and users of tobacco products against the extensive vigilantism which their lawful leisure time recreational activity has invoked in recent years. The Governor, in his message in 1992 approving the legislation, wrote that the proposed statute properly “[s]trikes the difficult balance between the right to privacy in relation to non-working hours activities of individuals and the right of employers to regulate behavior which has an impact on the employee’s performance or on the employer’s business.” (Here is a link to the decision which contains that language).
Thus, it is pretty clear that an employer cannot discriminate against employees/individuals that smoke.
While the law makes it illegal for an employer to fire or refuse to hire an employee that smokes, the employer is not required to let an employee take smoking breaks. First, it is important to note that NYLL §201-d only applies to the “legal use of consumable products” during non-work hours; it does not give an employee a right to smoke during work hours. Second, New York law does not require an employer to allow hourly employees to take breaks (for any reason) other than an unpaid lunch break of at least 30 minutes if the employee’s shift is at least 6 hours, starts after 11AM and ends after 2PM. (Here is a link to a decision from a state appellate court finding that an employee that was fired for taking smoking breaks in violation of the employer’s policy against hourly employees taking unpaid breaks was not entitled to unemployment benefits). Third, no court has ever found nicotine or tobacco addiction to be a disability under the Americans with Disabilities Act (and thus, there would be no requirement to accommodate employees that smoke). Thus, it is pretty clear that while an employer can’t fire you for smoking outside of the workplace, they also don’t have to let you take smoke breaks during the work day.
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