The short answer is, maybe. New Jersey has a law specifically prohibiting discrimination against an employee because the person is (or is not) a smoker. The law provides that "no employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products." Aggrieved applicants and employees may sue their employers in court for violating the law.

The law does, however, include a limited exception under which such discrimination is permitted. An employer may discriminate against an employee because he/she smokes (or does not smoke) if the employer "has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee." Of course, that kind of legalese could mean a lot of things. And, unfortunately, the courts have yet to provide guidance. So what is an employer, and particularly a health care employer, to do? Is there a "rational basis ... reasonably related to the employment" to justify a health care employer's refusal to hire a smoker? Again, maybe.

The "smoker discrimination law," as it will be called here, was enacted more than a decade ago, in 1991. Attitudes toward smoking have undeniably changed a lot since then. That change is evident in the enactment in April 2006 of the New Jersey Smoke Free Air Act (SFAA), which bans smoking in virtually all workplaces and indoor public places in New Jersey. The SFAA includes a rather strong anti-smoking statement, which, after noting the hazards of smoking, declares that "it is clearly in the public interest to prohibit smoking in all enclosed indoor places of public access and workplaces." This recent legislative pronouncement, which is decidedly anti-smoking, may support an expansive interpretation of the smoker discrimination law's "rational basis" exception, especially in the context of health care employment.

If a health care employer were to be sued for an alleged violation of the smoker discrimination law, it would have a good faith argument that it should be permitted to discriminate against smokers. The employer could argue that it had a rational basis for discriminating against a smoker, to wit, it is an essential responsibility of its employees to promote good health of patients, and smoking is antithetical to good health, as the legislature recognized in the SFAA. We do not suggest health care employers have a license to discriminate against smokers; it is only an argument that could be made, and one that is perhaps more likely to succeed in light of the SFAA. The basic rule of the smoker discrimination law remains: Employers are prohibited from discriminating against applicants and employees because of their "smoker status."

Like all anti-discrimination statutes, the smoker discrimination law seeks to prevent employment decisions based on stereotypes. And we expect smokers to argue that it is one thing to prohibit smoking at work and another to invade their private lives. Ultimately, liability under the smoker discrimination law would depend on a highly fact-specific inquiry. Thus, health care employers should consult counsel as they consider any employment action against a smoker.