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Alison W. Bullock/MEDILL

Smokers in Chicago won't have to worry about anti-smoker hiring practices.  

Illinois law protects employees who smoke

by Alison W. Bullock
Feb 16, 2011

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Illinois Right to Privacy in the Workplace Act

Excerpt from the Right to Privacy in the Workplace Act:

Sec. 5. Discrimination for use of lawful products prohibited.


(a) Except as otherwise specifically provided by law and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.


(b) This Section does not apply to any employer that is a non-profit organization that, as one of its primary purposes or objectives, discourages the use of one or more lawful products by the general public. This Section does not apply to the use of those lawful products which impairs an employee's ability to perform the employee's assigned duties.

(c) It is not a violation of this Section for an employer to offer, impose or have in effect a health, disability or life insurance policy that makes distinctions between employees for the type of coverage or the price of coverage based upon the employees' use of lawful products provided that:
             (1) differential premium rates charged employees
     reflect a differential cost to the employer; and
             (2) employers provide employees with a statement
     delineating the differential rates used by insurance carriers.


Smokers looking for work in Chicago can exhale. 

Policy changes being adopted by some businesses and hospitals permit them to refuse a job to smokers. Some states allow it, but Illinois law doesn’t.  

The Cincinnati Zoo recently announced that it would not hire smokers, and in 2006, an employee at a national lawn care company based in Massachusetts was fired after failing a test to detect nicotine.  

According to the Illinois Right to Privacy in the Workplace Act, a company, private or public, cannot legally discriminate against someone for using a lawful product. A subsection of the act says that it does not apply to non-profit organizations that discourage the use of some lawful products by the public.

For example, The American Lung Association could make the decision to not hire smokers because their primary function is to get people to stop smoking.  

“The law in Illinois is that an employer can’t discriminate against someone for using an otherwise lawful product during non-work hours,” said Kent Sezer, a labor and employment lawyer at Neal & Leroy, LLC. “Smoking is the obvious target of that protection.”

But the constitution does not protect smokers, said John Banzhaf, professor of public interest law at George Washington University. 

Although some states such as Illinois do have laws that bar discriminating against smokers, an employer could find some loopholes, he said.  

Companies could say someone can’t set foot on their premises if they have detectable traces of smoke on them. Banzhaf said this could work as a deterrent.

“That would mean someone would have to shower, change their clothes and use mouthwash after every time they smoked before returning to work,” he said.  

The prevalence of smoking among unemployed people was around 45 percent in 2008, compared to 28 percent among people employed full-time, according to data from the Centers for Disease Control and Prevention.  

Lisa Hogan, 36, said she would feel discriminated against if she were denied a job because of her habit.  To avoid being judged by her co-workers and employer, Hogan said she doesn’t leave a job site to take a smoke break.  

Employers have a financial incentive to discriminate against smokers, said Dan Swarztman, an associate professor of health policy and administration at the University of Illinois at Chicago.

Health insurance and smoking cessation programs for smokers drive up costs. But not hiring smokers could shift the cost to the public, he said.

“A company can decide not to pay to help someone quit smoking by not hiring them,” Swartzman said, “but if they end up unemployed and on the street, we pay for those people with our taxes.”

But barring discrimination does not mean equal treatment.

The Right to Privacy in the Workplace Act says that it would not be a violation for an employer to impose different health or life insurance policies based on an employees’ use of lawful products.

“The exception in the law says an employer can charge higher policy premium because someone is a smoker, but they can’t say, ‘You won’t be hired,’” Sezer said.  

“The idea behind the law is that an employer shouldn’t be in a position to dictate to people what they do on their own time.”