Can you restrict off-duty smoking?

Employers and government officials alike have faced increasing pressure to ban smoking at work. Over the past 15 years, the volume of costly litigation related to workplace smoking has increased dramatically. As a result, more and more employers are seeking not only to maintain a smoke-free workplace but to also hire employees who do not smoke at all-either on or off duty.

State laws protecting smokers. In response to the growing attempts by employers to prohibit off-duty smoking, states began enacting so-called smokers' rights laws. These laws prohibit discrimination against employees and job applicants who smoke outside of their employer's premises during nonwork hours. The laws usually take the form of rules that prohibit discrimination against employees for using legal substances-including tobacco products-on their own time or for engaging in lawful activity.

• Discrimination for off-duty smoking prohibited. Generally, these laws limit an employer's ability to discharge an employee for smoking away from work on the employee's own time. They also usually limit the employer's ability to refuse to hire a prospective employee or to discriminate against an employee because of the employee's off-duty smoking preferences.

• Exceptions based on relationship of smoking to job requirements. Typically, in order for an employer to do anything about an employee's off-duty smoking, there must be some relationship between the conduct and the job requirements or job performance.

For more information. For information on restricting smoking in the workplace, see ¶61,260 . For a checklist of state law considerations when restricting off-duty smoking, see ¶61,301 .