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Can a firm make it a requirement that you are not a smoker?

Jordan, MN |

So I had an interview with a firm and one of their requirements was that I did not smoke, isn't this crossing the line for an employer?

PS. They are not in the healthcare field, which I would kind of understand if they were.


Thanks

Attorney Answers 2

Posted

Minnesota law provides that an employer may not refuse to hire, discipline, or discharge a job applicant or employee who engages in the use of “lawful consumable products” (including tobacco) off the employer’s premises during nonworking hours. See Minn. Stat. § 181.938. This statute is commonly referred to as the Consumable Products Act (the “CPA”).

The CPA applies to all employers in the State of Minnesota except the State of Minnesota itself, political or governmental subdivisions, and certain transportation employers subject to the Federal Railway Act (this would include railroads and airlines). See Minn. Stat. § 181.938, subd. 1; Minn. Stat. § 179.01, subd. 3.

Under the CPA, the term “lawful consumable products” means “products whose use or enjoyment is lawful and which are consumed during use or enjoyment, and includes food, alcoholic or nonalcoholic beverages, and tobacco.” Minn. Stat. § 181.938, subd. 2.
The CPA provides that “[a]n employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in or has engaged in the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.” Minn. Stat. § 181.938, subd. 2.

There are several exceptions in the CPA. First, the CPA provides that an employer may restrict the use of lawful consumable products by employees during nonworking hours under either of the following circumstances:

(1) if the employer’s restriction relates to a bona fide occupational requirement and is reasonably related to employment activities or responsibilities of a particular employee or group of employees; or

(2) if the employer’s restriction is necessary to avoid a conflict of interest or the appearance of a conflict of interest with any responsibilities owed by the employee to the employer.

Minn. Stat. § 181.938, subd. 3(a).

Second, the CPA provides that it is not a violation of the act for an employer to refuse to hire an applicant or discipline or discharge an employee who refuses or fails to comply with the conditions established by a chemical dependency treatment or aftercare program. Minn. Stat. § 181.938, subd. 3(b).

Third, the CPA provides that it is not a violation of the act for an employer to refuse to hire an applicant or discipline or discharge an employee on the basis of the applicant’s or employee’s past or present job performance. Minn. Stat. § 181.938, subd. 3(d). Thus, an employer may lawfully discharge an employee for poor attendance or job performance, even if related to or caused by drinking off the employer’s premises during non-working hours.

Fourth, the CPA provides that it is not a violation of the act for an employer to offer, impose, or have in effect a health or life insurance plan that makes distinctions between employees for the type of coverage or the cost of coverage based upon the employee’s use of lawful consumable products, provided that, to the extent that different premium rates are charged to the employees, those rates must reflect the actual differential cost to the employer. Minn. Stat. § 181.938, subd. 3(c).

If an employer has refused to hire you because you are a smoker, you may have a claim under the CPA. The CPA provides that the sole remedy for a violation of subdivision 2 is a civil action for damages. Damages are limited to wages and benefits lost by the individual because of the violation. Minn. Stat. § 181.938, subd. 4. The CPA further provides that “[a] court shall award the prevailing party in the action, whether plaintiff or defendant, court costs and a reasonable attorney fee.” Minn. Stat. § 181.938, subd. 4 (emphasis added).

Feel free to contact our law firm if you would like to discuss this further. We are located in Minneapolis, Minnesota and all of our attorneys are licensed in Minnesota.

Craig W. Trepanier, Esq.
Minnesota Employment Attorney
www.trepanierlaw.com

As with all of my answers, this posting is not intended as legal advice, does not create an attorney-client relationship, should not be relied upon due to the limited facts and space available, and is not a substitute for individual legal advice from your own attorney after a full consultation.

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Wow! This is an incredibly interesting (and unusual) law. The tobacco lobby must be really strong in Minnesota. Thank you so much for posting this information.

Asker

Posted

Honestly though where does the employer have the right to say what you can and can't do in your own time. I mean if this was the case what would be next, telling us where and on what we can spend our salaries?

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

I agree it is obnoxious. I imagine it comes from our history where "employment" law was really a relationship between master and servant. Not surprisingly, the power has remained with those with the money. Employment rights come from the state and federal legislatures. One of the best things working people can do to improve their employment rights is to vote for candidates who have a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in the union already in place.

Posted

I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.

There is nothing illegal about this. Employers are entitled to hire based on their preferences unless those preferences are based on an unlawful characteristic, such as sex, race, religion, disability, etc.

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

To add some more info: Employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does. There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful. Employment rights come from the state and federal legislatures. One of the best things working people can do to improve their employment rights is to vote for candidates who have a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in the union already in place.

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