You didn’t think smokers were going to go down without a fight, did you? As of the end of 2006, six states – Delaware, Massachusetts, New Jersey, New York, Rhode Island and Washington prohibit smoking in all workplaces (including restaurants and bars). Florida, Georgia, Montana, North and South Dakota, Rhode Island, Arkansas, Maine, Minnesota, California and the District of Columbia have some form of smoke-free workplace regulations. Interestingly, Vermont allows employees to vote on whether a workplace is non-smoking with the majority ruling. All this has led a number of law firms to automatically go non-smoking, and place limitations or prohibitions on smoking even outside of the workplace, e.g. higher employee health care contributions for smokers or openly refusing to hire smokers.

However, 30 states, including some of the states who have recently approved workplace smoking limitation laws, have existing “lifestyle antidiscrimination” laws in place which protect employees and applicants from discrimination as the result of some lawful activity. In fact, Missouri, Rhode Island and Indiana passed such laws within the past two years. Typically, these laws prohibit employers from discriminating against smokers regarding compensation, terms, conditions and privileges of employment, or not hiring or discharging employees for tobacco use outside of the workplace. Eleven states have exceptions in their laws to permit employers to charge differential rates regarding health, disability and life insurance, but prohibit any other form of discrimination.

The point is that smoking limitations are a maze of conflicting laws and regulations with little consistency among states. While we are not aware of any law firms that have been sued over smoking issues, we have seen a number of multi-office firms in the embarrassing situation of having to reverse firm-wide policies which were drafted for one state but are not applicable in all the states in which they have an office.