Should Employers Be Permitted not to Hire Smokers? A Review of US Legal Provisions

Background: Increasingly, healthcare and non-healthcare employers prohibit or penalize the use of tobacco products among current and new employees in the United States. Despite this trend, and for a range of different reasons, around half of states currently legally protect employees from being denied positions, or having employment contracts terminated, due to tobacco use. Methods: We undertook a conceptual analysis of legal provisions in all 50 states. Results: We found ethically relevant variations in terms of how tobacco is defined, which employee populations are protected, and to what extent they are protected. Furthermore, the underlying ethical rationales for smoker protection differ, and can be grouped into two main categories: prevention of discrimination and protection of privacy. Conclusion: We critically discuss these rationales and the role of their advocates and argue that enabling equality of opportunity is a more adequate overarching concept for preventing employers from disadvantaging smokers.