A client recently asked me if he, as an employer, could designate his office as a “smoke-free” environment and, what’s more, if he could refuse to hire people who are smokers.

The short answer is, yes, under Michigan law, an employer can have both a smoke-free workplace and a workplace free of smokers.  (Even though smoking is a legal activity, and even if the smoking is done exclusively during off-duty hours.)

Federal law prohibits employers from discriminating against any individual in hiring because of that individual’s race, color, religion, sex, national origin, citizenship status, age, and disability.  State law also prohibits discrimination in hiring based on age, height, weight, or marital status, in addition to race, color, religion, sex (which includes pregnancy), national origin, and on the basis of disability.  A particular hiring practice may be unlawful if it is used for the purpose of excluding a “protected group”.  As of yet, smokers are not a “protected group” under Michigan or Federal law.

In Stevens v. Inland Waters, Inc., 220 Mich. App. 212, 559 N.W.2d 61 (Mich.App.,1996), an employee brought an action against his employer for allegedly violating the Michigan Handicappers’ Civil Rights Act (HCRA) by terminating his employment as a security guard because of his on- and off-duty smoking.  The HCRA provides that an employer shall not discriminate against an individual with respect to employment because of a “handicap” that is unrelated to the individual’s ability to perform the duties of a particular job or position.  To establish a case of discrimination under the HCRA, it must be shown that (1) the plaintiff is “handicapped” as defined in the HCRA, (2) the handicap is unrelated to the plaintiff’s ability to perform the duties of a particular job, and (3) the plaintiff has been discriminated against in one of the ways set forth in the statute.  The HCRA defines a “handicap” for purposes of the statute as a determinable physical or mental characteristic of an individual that substantially limits major life activities.  The Circuit Court granted summary judgment for the employer, and the employee appealed.  The Court of Appeals affirmed holding that the employee’s addiction to nicotine and his smoking did not substantially limit his life’s major activities, as required for it to be handicap under HCRA.

Most employers, however, don’t discriminate on the basis of smoking.  Rather, they prohibit smoking in the workplace, including company vehicles, in order to provide a safe and healthful work environment for everyone, but allow smoking in certain designated, outside areas and away from the company building.

Several efforts have been made in the State legislature to ban workplace smoking entirely but none have passed.

–Matt