employees who smell like smoke

Jennifer D · March 2003

A painting contractor has employees that are smokers, and smell like smoke.
We are in an area that is very anti-smoking. He would like to be the
“different painter” by having his crews not smell like smoke. Can this
issue be addressed/enforced/disciplined with his employees from the aspect of good hygiene?
Also, what is the Colorado definition of a Bona-fide Occupational
Requirement? Can not smelling like cigarette smoke be a Bona-fide
Occupational Requirement?

Parabeagle · March 2003

I don't see how you could characterize not smelling like smoke as a bona fide occupational requirement outside of a health care setting (but I'm sure there are some wizened, seasoned HR professionals who will take issue with me on that). I think you need to address it as you would any other fragrance issue, but I would add one caveat: Many states have enacted "smokers rights" legislation which prohibits discrimination against an employee for the "lawful, off-duty use of tobacco products."

Leslie · March 2003

Not smelling like smoke is something you genuinely need for a job painting? Sounds to me like the guy just wants a crew that doesn't smell like smoke so he can make more money in an area where people hate smoking. That's not a bona-fide occupational requirement, that's a profit wish.

You could hire a crew of non-smokers I suppose. But telling present employees they are suddenly required to quit smelling like smoke in order to keep their jobs is suspect.

Jennifer D · March 2003

I am completely on board with the fact that he is attempting to create a better profit margin due to having non-smokers/non-smoke smelling employees. What I am wondering if it can be addressed as you would any other hygiene issue is addressed with employees, I can't find anything for Colorado to "protect smokers rights". Also, there seems to be some wiggle room in the Colorado statutes concerning the "Bona-fide Occupational Reguirements" I was wondering what the legal minds thought on that one. Thanks for any help or guidance anyone can provide!

Parabeagle · March 2003

According to my sources, Jennifer, Colorado does have a law prohibiting private employers from discriminating against employees based on the "use of lawful products" outside the workplace. (US Employer's Guide, 9th Ed)

As I said earlier - treat it as you would any other fragrance or hygiene issue and you should be ok. As for the term "bona fide occupational requirement" I think you would need to show definite work-relatedness in order for the BFOR to be acceptable to the DOL. I honestly don't think you can claim that a painter must not smell like smoke in order to paint.

terryb · March 2003

I quit smoking 5+ years ago. My husband did not. If this prohibited me from working, it wouldn't be my husband I'd go after.

jimlegal · March 2003

Agree with Parabeagle. Treat it like any other fragrance matter. Good luck...

Don D · March 2003

BFOQ was birthed by the EEOC. I can't imagine that any EEOC investigator would come down on the side of this being a BFOQ. An impossible stretch! I can't imagine that the smell of smoke on a painter's clothes would be 'louder' than the smell of paint. Show me a painter who doesn't smoke and/or drink and I'll show you a painter that ain't really a painter. This guy is likely chasing an invisible rabbit and pulling your leg all at the same time. Watch him if he suggests redoing your driveway for upfront cash.

Jennifer D · March 2003

BFOQ from the EEOC has a very strict definition, Colorado uses Bona-Fide Occupational Requirement. Which in the statutes seems to have some wiggle room that isn't in the EEOC's BFOQ. Does anyone have familiarity with Colorado's specific BFORequirement?

Don D · March 2003

You should call your Colorada Department of Labor for an explanation of their terminology and its implications. I will also tell you that having a Department of Labor and their having certain terminologies and acronyms does not mean you will not still have to suffer through the same charges placed with the EEOC. On a more general note, I will go waaaay out on this limb and tell you that there is no way to prohibit an employee from smelling this way or that. It would be like pushing a string. A wiser use of the paint supervisor's time would be for him to tell them to spash some turpentine on their pants.

employees who smell like smoke

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