Pre-Hiring Screening Case Cigarette Smoker

Date: December 28, 2011
Posted In: DLP Law

cigarrette-tobacco-smoker-pennsylvania-employment-screeningSandy was confident that she would be hired for the position she had applied for at the Wonderful World Corporation. Sandy had excellent credentials and references. During her interview, Sandy was asked if she used tobacco products including cigarettes, cigars and/or chewing or smokeless tobacco. Sandy had smoked cigarettes for over ten years and, try as she may, she just could not kick the habit. She decided that she would answer that she did not smoke cigarettes since she felt that she could definitely go without while she was at work or just smoke on her lunch hour away from the company property. As part of the pre-hiring process, Sandy was given a routine drug screening test. She did not realize that the test would indicate whether or not she smoked cigarettes or ingested smokeless tobacco or any other type of nicotine product. When the test came back positive for nicotine use, Sandy was not hired.

ISSUE: Was the company within their rights to not hire Sandy because she smoked?

ANSWER: Yes. Pennsylvania is one of a number of states that has non-nicotine hiring policies that have been deemed to be legal. Companies have found that by encouraging the nonuse of tobacco among their employees, that there is decreased absenteeism and greatly reduced health costs as a result of said policy.

*Disclaimer: The above article is for instructive purposes only and each case is fact sensitive. Consultation with an attorney should be obtained instead of reliance upon the legal issues discussed in this column.

Tom Cummings
Thomas P. Cummings has been a Partner with Dougherty Leventhal & Price, LLP since 1996 and has been with the firm since 1991. He focuses his practice on workers’ compensation, Social Security Disability and personal injury cases.