Employment Law Blog

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Sep 10, 2013

Can I ask job applicants if they smoke?

Q&ADisabilityHiring 

Q: With the government confirming that smokers cost $4,000 more a year in health care costs, can I ask an applicant “Do you smoke?”

A: Asking this question for most jobs is not a good idea. It could be perceived as a breach of privacy because smoking tobacco is a legal activity, and some states’ laws protect legal, off duty conduct. Also, one could argue that smoking is an addiction, which would be a protected disability. However, if being a smoker would impact essential job functions, then you can ask. For example, if you’re hiring a person who will regularly apply cosmetics to customer faces in a retail store, you would not want someone whose hands smell like smoke. The key for any question is to make sure it’s job related. You are trying to see if the person is the best at performing the job duties, not whether they will be a drain on insurance. Wellness incentive programs might help you reduce employee smoking and resulting health care costs. For other ideas and suggestions for legal interview questions, call your Vigilant representative.

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