I was listening to NPR this morning, and they had a news story about more and more employers telling smokers that they “need not apply.”    These nicotine based employment hiring bans include government employers and private employers.

I posted about this topic all the way back in 2013.  Listening to the news this morning peaked my interest, so I went back to check my prior blog post and to determine if its still legal to not hire smokers in Florida.   This is what I found in 2013.

So, is the ban on hiring smokers a legal one?  First, there is no Federal law that protects smokers or entitled them to equal protections in hiring. Second, state laws vary as to whether an employer can restrict off duty use of tobacco. But, here in the Sunshine State, there is no state law that provides protection for candidates applying at smoker free workplaces.

In fact, all the way back in 1995 the Florida Supreme Court upheld a City of North Miami policy requiring job applicants to swear they have not smoked cigarettes within the past year (see The City of North Miami v. Kurtz, 653 So. 2d 1025 (Fla. 1995).

In Kurtz, Arlene Kurtz applied for a clerk-typist position and said she could not sign the affidavit, required by the City as part of its application process, that she was a nonsmoker.  The City interviewer told her that if she was not smoke-free for at least a year before applying with the city, then she would not be considered for the job.

A lower court had ruled that the policy was unconstitutional.  But, by a 5-2 split, the Florida Supreme Court disagreed.  Justice Ben Overton wrote in the opinion of the court that smokers do not have a reasonable expectation of privacy about their smoking, as they are “constantly required to reveal whether they smoke.”

However, Overton cautioned that the ruling does not apply to whether employers can require employees to stop smoking once hired, and does not apply to whether employees who signed the affidavit could start smoking or resume smoking.

And, Kurtz remains good law in Florida as of 2019.

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.