Can you ask if a person smokes or chews tobacco on an employment application?


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  • It is not generally against any laws to discriminate against smokers.  There may be a state or two that protects smokers so check to see if your state does. If it does not, then yes, not only can you use the question but you can discriminated based upon the answer.  However, you would need to make sure it doesn't lead to disparate impact on a protected group (for example all the smoker applicants are also all over 40).

    Is it best business practice to do so? Not in most cases.  But if the top mgmt wants to use it as a hiring criteria, they can.  They can also use it as a factor in health insurance premiums (by charging higher premiums for smokers or giving a break on premiums to nonsmokers).



  • More than one or two states have these laws, so you better check.

    Go to, click on the state, and then on Smoker Protection Law.


  • It is illegal in Illinois to discriminate against someone for using tobacco products.
  • I think it might be interesting to see someone make an ADA claim based on their nicotine addiction.  It's not illegal.  It's a recognized physical addiction.  Would you feel comfortable asking them if they are an alcoholic or, more extremely, if they have diabetes and, if so, if they take good care of themselves so that it won't be a problem for the company?  All exageration aside, I know some companies ask and I think I've read something about some states allowing differential health insurance premiums based on smoking status.

  • I agree that with the new ADA regulations I think you are going to see someone claim this.  My overall question is why do you want to ask this? What is the employment basis for this question?  I understand some organizations (police, fire, etc.) asking about this as this has the ability to diminish lung capacity and can affect the ability to do the job.  But what other reasons? If someone is worried about how customers feel about smell of cigarettes or sight of someone chewing tobacco then address the issue in personnel appearance policy and forbid the use of it on company premises and when out on location with a customer.  If worried about smoke breaks then look at state law to determine if you legally have to give breaks and if so, how many and how long in duration.
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