Human Resource Blog

Smokers Rights in Oregon

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Under Oregon law (OR 659A.315) it is illegal to discriminate aganist hiring those who smoke in off duty hours. Can a company headquarted in Washington State use a positive nictotine test result as a reason not to hire a resident of Oregon, if the company is doing business in Oregon? The company in question is an airline.

This is an interesting question because it raises several complex issues that might need to be resolved in court. Even though the company has headquarters in Washington, the Oregon law probably applies to workers in Oregon.

Can an Oregon employer choose to hire only non-smokers? The answer here is usually “no.”

In most of the country, employers can make almost any hiring decision that they like, as long as they do not discriminate based on race, color, sex, disability, national origin or religion. An Oregon law adds marital status to that list. In this case, the employer chooses to have a smoke-free workplace and feels that hiring only non-smokers will facilitate that.

The Oregon law that you cite, OR659A.315, prohibits employment discrimination against people who smoke in off-duty hours. However, there are two significant exceptions to this law. One is if smoking relates to a bona fide occupational requirement. An airline might be able to make a case that being a non-smoker is a bona fide occupational requirement for a pilot, mechanic or flight attendant.

The second exception is if a collective bargaining agreement (usually a union contract) prohibits off-duty use of tobacco products. That could very well be the case here. Oregon courts have upheld the rights of employees to enter into such contracts with their employers.

An additional protection applies only to civilian employees of the federal government. Under regulations issued by the Office of Professional Standards, an employee’s behavior outside of work cannot influence the decision to hire or promote him (or her.) This rule is cited often to prohibit discrimination against gay and lesbian employees. OPS regulations also apply in some cases to companies that have large federal government contracts.

Does the bona fide occupational requirement or OPS regulations apply in this case? That could probably only be determined by litigation.

Many employers have a policy that employees who lie on their application or in a job interview can be terminated immediately. It’s likely in this case that the employer’s application asks “Do you smoke?”, or that the question was asked during an interview. If the employee answered “No,” but then failed a drug test for nicotine, the employer could legitimately fire the employee or refuse to hire them. The issue here would be the employee’s lying, rather than the smoking.

In general, Oregon permits drug testing of applicants and employees, as long as there is a clearly articulated policy and it is applied consistently to everyone. There is no specific state statute that addresses drug testing before or during employment. Even in cases where pre-employment drug testing has been disallowed, it is permitted when public safety is at risk, as in the airline industry. So it appears that this use of testing is legitimate.