Smoking in NYS is a Key Protected (and Lawful Activity) When Hiring in Business and at Work

As reported in the New York Times last week : on January 2, 2020, U-Haul International announced that the company would stop hiring smokers (including users of tobacco, e-cigarettes and vaping products) as of February 1, 2020 in more that 20 states: U-Haul International has announced plans to stop interviewing and hiring nicotine users, including people who use e-cigarettes and vaping products.  People hired before the policy goes into effect won’t be affected, company officials said. The company expects the nicotine-free hiring policy would help create a more healthy corporate culture, officials said. The new policy will focus on the health of team members and employees, while also decreasing healthcare costs, company officials said. New York state is not one of those more than 20 states. Why?

In New York state, it’s not compliant to refuse to hire an employee because they smoke tobacco or vape nicotine, as smoking and vaping in NYS is a key protected (and lawful) outside activity.

Earlier in my NYS HR career, I worked with a hiring manager who repeatedly told me not to hire smokers – the hiring manager claimed they could smell it on a smoker’s clothing, even if the smoking employee wasn’t allow to smoke in the office and didn’t smoke during the day. I repeatedly advised the hiring manager that their request was not compliant, as explained above. Fortunately, the hiring manager understood the compliance requirement, and did not want to put the organization or themselves at compliance risk.

Employers often conflate the NYS Clean Indoor Act with smoking as a lawful outside activity – e.g., it’s not compliant to smoke or vape in any NYS workplace. (Case in point: vaping device manufacturer Juul can’t get employees to stop vaping in their NYS workplaces – which is not compliant with the NYS Clean Indoor Act regulations.)

How do you ensure that your organization does not discriminate against smokers or vapers in the hiring process, in business and at work?