Employers hoping to cut health care costs naturally look to reduce unhealthy behaviors, and perhaps none is more preventable than smoking. And few are more expensive — a smoker costs a company $12,000 more a year than a nonsmoker, with an annual medical pricetag of more than $95 billion. Add on another $97 billion a year in lost productivity, according to the Centers for Disease Control and Prevention, and it’s easy to see why CFOs and benefits managers would want to implement smoking-cessation programs and smoke-free policies.

However, many states, including Washington, D.C., have some kind of lifestyle protection or “smokers’ rights” law, and employers — particularly those that straddle state lines — should review their policies carefully or risk getting hit with a discrimination lawsuit. John Thurman, an employment attorney with New Jersey-based Farrell & Thurman, says to “support cessation programs and that type of thing” is always a good call, but leaders should try to keep those policies non-invasive.  

“In most states, the employer has control over the actual workplace,” Thurman says. “So, employers can prohibit smoking indoors; they can restrict where smokers gather outside to smoke, so they have control over their property. [But] you cannot discriminate against someone for smoking on their own time. If they smoke on their break, or on weekends, you cannot discriminate against them on that basis.”

What Thurman describes is the law “in most states” — 29, plus the District of Columbia. However, 21 states — Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Massachusetts, Michigan, Nebraska, Ohio, Pennsylvania, Texas, Utah, Vermont and Washington —  lack smoker protection laws, allowing employers to deny employment to individuals that smoke.

Even in the majority of states with smokers’ rights, “the laws are toothless and easily avoided,” according to Action on Smoking and Health. Virginia’s statute applies only to state employees, for example, and New Hampshire’s has long been dodged by employers who simply ban workers from coming in with detectable tobacco odor, or “third-hand smoke.”

Many of the states with laws protecting smoking (including Illinois, Minnesota and Montana) make it clear that charging tobacco-users more for health care is par for the course. Others, such as Tennessee, Colorado and Louisiana, only apply their protections to current employees.

Still, Thurman says, companies should be mindful of their state’s restrictions, particularly in the hiring process. He cautions against wording like “nonsmokers preferred” in job postings “because you’re creating a record. A lot of companies cross state lines. Anytime you are introducing a policy that’s going to apply to multiple facilities, [employers] shouldn’t forget about [lifestyle laws like smoker protections], because what would be legal in Michigan would be illegal in Jersey.”

To read more about smokers’ rights laws and how to avoid running afoul of them, pick up the February 2013 EBN.