The Centers for Disease Control reported recently that tobacco use is the single most preventable cause of death and disease in the United States, causing about 443,000 deaths annually. The report adds that for every person who dies from tobacco use, another 20 have at least one tobacco-related illness.

The report claims that “implementing smoke-free policies” has, in conjunction with other efforts, proven to “significantly reduce tobacco use.” But what are the legal parameters of such a “smoke-free” policy?

Many employers have offered smokers assistance in quitting and have imposed “smoker surcharges” on medical premiums. Some have banned smoking on their premises, forcing employees to leave company property (as compared to congregating outside of the building) to have a smoke or chew.

And some employers have taken the next step and have adopted “smoker free” workplace policies and simply refuse to employ smokers. This type of policy received nationwide publicity a few years ago when a Michigan benefit consulting firm adopted a smoker free workplace policy.

The legal challenges to these smoker-free workplace policies have already begun and are likely to increase. In the past 25 years, 29 states and the District of Columbia have singled out smokers for special workplace protections and prohibit employers from discriminating in employment based on an individual’s tobacco use off the company’s premises on non-work time, i.e., from implementing a smoker-free workplace policy.

Legal challenges are likely to come from many directions: ADA, GINA, HIPAA, ERISA, ERISA, invasion of privacy claims and wrongful discharge theories, to name the most likely. Our recent article in DRI’s Job Description newsletter (reprinted with permission) summarizes the challenges that have been made.

The irony is that employers who take steps to reduce tobacco use—a CDC recommendation– face a maelstrom of legal risk. To encourage employers to get involved in this effort, and enhance the effort’s likelihood of success, a clear and consistent body of federal law concerning an employer’s rights with regard to smoking and tobacco use by applicants and employees is essential.