A recent NBC.com article indicated that employees that smoke cost employers $6,000 more a year. According to the Ohio State University study noted in the article, cost impacts such as health care costs, smoke breaks, sick days and “presenteeism” were all factored in. Additionally, the study factored in cost savings to the extent there would be a pension savings due to a shorter life span.

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Accordingly, while most companies are smoke-free workplaces, more and more employers are moving towards a smoker free workplace.

Is it legal in Florida not to hire smokers?

In October 2012, The City of Delray Beach, Florida made news when it banned hiring smokers. Before that, many hospitals and health care companies announced that they would no longer hire smokers.

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.

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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.