Human Resource Blog

Employment Application

We are a small manufacturing business in Ohio.

Are we allowed to include a question on an employment application if the person is a smoker / non-smoker?

Thank you

Jen

Such a question is lawful in Ohio, although including it on the employment application is not a best practice.

A total of 29 U.S. states have laws that protect an employees right to use tobacco away from work. In most of those states, it would be unlawful discrimination for you to refuse to hire smokers. However, Ohio does not include such a law. It is lawful for an employer to screen applicants for smoking, and to refuse to hire smokers in Ohio and 20 other states.

Although use of tobacco outside of work hours is protected in many states, there is no state where employers must provide special accommodations for smokers. Employers are not required to provide additional smoke breaks, over and above those provided to non-smokers — and the majority of companies do not provide them. The days when smokers took multiple 5 or 10 minute impromptu smoke breaks throughout the day are past. Employers now realize that the cumulative effect of these shorter breaks is a significant reduction in productivity by smokers.

Rather than refuse to hire an employee who is a smoker, a better tactic would be to inform employees in the interview of your smoking policy. Example,” We are a non-smoking workplace, meaning employees are not allowed to smoke during the work day, even in their own cars in the parking lot. Nor are employees permitted to leave the property during the meal or rest breaks. This means that employees are not able to smoke from the time their shift starts until it ends. Will you be able to work productively under these conditions?”

Another option would be to ask an open-ended question, such as, “How many smoke breaks do you expect to take each day?”

But again, it is lawful for you to ask applicants to specify whether they are smokers or non-smokers. If you do so, you can expect many applicants who smoke to lie on the application.

This question would be unlawful in California, Illinois, Wisconsin, South Carolina and many other states.