Off Duty Tobacco Use Protected in Connecticut

A recent attempt by a Michigan based employer to terminate employees for their off the job use of tobacco has drawn national attention. The employer’s policy prohibits employees from using tobacco at any time. In addition, the company conducts pre-employment tobacco testing, and random tests for tobacco use. It even permits the employer to search employees for tobacco products based on reasonable suspicion. Violations can result in termination.

Connecticut employers adopting such a policy would run afoul of state law. Conn. Gen. Stat. § 31-40s prohibits employers from discriminating against employees or applicants for their use of tobacco outside the workplace. Connecticut employers may, however, designate their facilities as 100% non smoking. Alternatively, they may set up smoking areas within the facility, provided sufficient barriers and ventilation systems are installed to minimize the effect of smoke in adjacent non-smoking areas. Conn. Gen. Stat. § 31-40q.

Employers should be aware that collective bargaining agreements may impact their right to limit smoking on the premises. Further, even where a labor agreement is silent, the National Labor Relations Board has held that smoking is a mandatory subject of bargaining. See e.g. UTC and IBT Local 1150, 1990 NLRB Lexis 980, 10/15/90. Therefore, union employers should seek legal advice prior to changing their smoking policies.