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This summer I started working in a small size company. It employs around 25 people. The owner of the company who is also my boss has a rule that he doesn't employ people who smoke. I'm a smoker. During the job interview I was asked if I smoke and I answered that I don't. Shortly after starting working I realized that there are some other employees in the company that also happen to smoke.

My questions are:

Does the employer have a right to say that they do not employe people who smoke?

Moreover, does the employer have a right to fire me once he will discover that I happen to smoke?

What is the best way to talk with employer about this issue?

closed as too broad by gnat, Mister Positive, jcmack, Jenny D, MonkeyZeus Sep 19 '18 at 19:46

Please edit the question to limit it to a specific problem with enough detail to identify an adequate answer. Avoid asking multiple distinct questions at once. See the How to Ask page for help clarifying this question. If this question can be reworded to fit the rules in the help center, please edit the question.

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    Comments are not for extended discussion; this conversation has been moved to chat. – Snow Sep 20 '18 at 7:33
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    @CallMeSam - As someone else asked, before it was removed, where in the world are you? What your employers rights are will vary by jurisdiction. – AndyT Sep 20 '18 at 8:20
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    @Snow - Please don't remove highly important comments. – AndyT Sep 20 '18 at 8:20
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    You forgot to state your jurisdiction. – CodesInChaos Sep 21 '18 at 14:13
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To be perfectly honest, you lied on your entrance interview. It's probably best not to talk to your employer about this. What would you have to win? Just keep your head down, try to make sure that you aren't smoking in times or places that would let your coworkers catch you (either by seeing you or by smelling it on you) and drive on. If that's overly onerous for you, I suggest you look for another job at the same time.

This may vary somewhat by location - I suspect there are some places where you are protected and some where you are not - but you have a company of 25 people, and this is clearly something that the CEO cares about. If the CEO knows that you smoke, he will be hostile to you (both for hitting one of his hot buttons and for lying about it), and in a company like that, having the personal animosity of the CEO is the sort of thing that's guaranteed to make your workplace experience significantly worse.

Also, a lot of places are at-will employment, which mean that you can be fired at any time for any reason. Even if the real reason is "you're a smoker" and that is protected, I guarantee he can come up with some other reason (or no reason at all) to fire you that won't be worth your time to litigate... especially with the difficulty of getting a judge/jury to sympathize with a smoker's rights issue.

There is no win here.

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    "or by smelling it on you" - non-smokers can notice smoking smells that smokers won't, in my experience, so this is going to be trickier than it sounds. – David Thornley Sep 19 '18 at 17:26
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    I once worked in a small company where the CEO said that he put a lot of nitpicking items in the employee handbook, so that he would have a reason to fire anyone who crossed him. No, I no longer work there, why do you ask? – kleineg Sep 19 '18 at 19:43
  • @DavidThornley that's definitely true, although unless the policy also extends to not having friends/family/partners who smoke, it would be difficult to prove the source of the smoke smell is a result of the employee smoking. – delinear Sep 20 '18 at 10:02
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    @delinear at the same time, legal proof isn't the issue here. Even strong suspicion can be damaging in this sort of situation. – Ben Barden Sep 20 '18 at 13:06
  • Could be a factor of health insurance premiums. In the US health insurance is largely provided by employers. They will pay from nothing to everything in terms of premiums, there is no law that says they have to pay the premiums, and even under Obamacare it only requires they offer it, not fully subsidise it. As such insurance is sold in risk pools and the risk pool for your employer is the group of employees on his staff. Smokers have a higher incidence of medical issues and result in higher premiums from health insurance providers. – Bill Leeper Sep 24 '18 at 16:02
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There are very few reasons why an employer can't fire employees. If you are employed in an at-will state, your employer doesn't even need to provide a reason for firing.

That said, smoking is protected in some states. If your workplace is not located in one of those states, your boss can simply tell the truth.

A statewide protection of smokers may not protect you from lying during your interview.

If caught, your best bet is to ask for documentation stating why you fired. If you live in a state where smoking is protected, you can take that to the unemployment office and/or an attorney.

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    If you're fired in a state where smoking is protected, you will find that the documentation doesn't say you were fired for smoking. Anti-discrimination laws are not easy to enforce with at-will employment. – David Thornley Sep 19 '18 at 19:47
  • It's not as simple as saying "Smoking is protected in these states." Here is the Missouri ordinance, for example. "It shall be an improper employment practice for an employer to refuse to hire, or to discharge, any individual...because the individual uses lawful alcohol or tobacco products off the premises of the employer during hours such individual is not working for the employer." Do you know a lot of smokers who only smoke during non-working hours or off-site lunch break? – user1602 Sep 23 '18 at 6:34
  • Good point. In Colorado you cannot be fired for doing something on your own time that is 'Legal', came up with Legal weed use. However, the case they took to the courts lost because the employer was a large national company and they felt that national laws prevailed over state ones in that particular case. – Bill Leeper Sep 24 '18 at 16:03

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