Employers may not refuse to hire an applicant because he or she is a smoker. This policy has been reinforced by the Minnesota Lawful Consumable Products Act, which protects certain off-duty conduct, including use of tobacco.276
Minnesota’s “Freedom to Breathe Act” prohibits smoking in virtually all indoor public places and all places of employment.277 The ban covers “any indoor area at which two or more individuals perform any type of a service” for payment and includes hallways, restrooms, elevators, lounges, auditoriums, employee cafeterias, and other shared office areas (e.g. areas containing photocopying equipment).278 The ban also includes vehicles “used in whole or in part for work purposes . . . during hours of operation if more than one person is present.”279 Private residences also may fall under the ban if the area is used “exclusively and regularly” as a place of business with one or more on-site employees, or if the homeowner uses the area “exclusively and regularly” to meet with patients, clients, or customers.
Significant exceptions to the ban include private places (e.g. private homes, private residences, and private automobiles when not used as a “place of employment”); tobacco products shops; cabs of heavy commercial vehicles; farm vehicles and construction equipment; and family farms employing two or fewer non-family members.280
The law tasks employers with making “reasonable efforts” to prevent smoking in their place of employment.281 Specifically, employers are required to:282
- Post appropriate signs;
- Ask persons who smoke in prohibited areas to refrain from smoking and to leave if they refuse to do so;
- Use lawful methods consistent with handling disorderly persons or trespassers for any person who refused to comply after being asked to leave the premises;
- Refrain from providing ashtrays and other smoking equipment; and
- Refuse to serve noncompliant persons.
Employers should note that knowingly failing to comply with enforcement of the ban will subject them to a petty misdemeanor charge.283 The law specifically prevents employers from discharging, refusing to hire, penalizing, discriminating against, or retaliating against an employee, applicant, or customer in any manner because the individual exercises their “right to a smoke-free environment.”284 Finally, under the law, local governments retain the authority to adopt and enforce more stringent measures.285 Employers should consult legal counsel where a local government has acted to regulate smoking in the workplace to ensure compliance with all applicable regulations.
In implementing the smoking ban, employers should also be mindful of Minnesota’s Lawful Consumable Products Act, which is discussed below.
The Lawful Consumable Products Act
The Minnesota Lawful Consumable Products Act, regarded by some people as a smoker’s rights law, prohibits employers from refusing to hire an applicant or from disciplining an employee because that person engages in the use or enjoyment of lawful consumable products, if the consumption takes place off the employer’s premises during non-working hours.286 “Lawful consumable products” are products whose use or enjoyment is lawful, including food, alcoholic or non-alcoholic beverages, and tobacco. An employer may, however, restrict the use of lawful consumable products by employees during non-working hours if the restriction relates to a bona fide occupational requirement, is necessary to avoid a conflict or an apparent conflict of interest with any of the employee’s job responsibilities, or is part of a chemical dependency or treatment program. Employers may also make distinctions between employees as to cost of insurance or health coverage based upon the employee’s use of lawful consumable products, so long as the difference in costs reflects the actual different costs to the employer. An employer violating the statute may be liable for lost wages and benefits, along with costs and attorneys’ fees.
276. Minn. Stat. § 181.938, subd. 2 (2007).
277. Minn. Stat. § 144.414 (2007).
278. Minn. Stat. § 144.413 (2007).
279. Minn. Stat. § 144.413 (2007).
280. Minn. Stat. § 144.4167, subd. 3–7 (2007).
281. Minn. Stat. § 144.416 (2007).
282. Minn. Stat. § 144.416 (2007).
283. Minn. Stat. § 144.417, subd. 2(a) (2007).
284. Minn. Stat. § 144.417, subd. 2(d) (2007).
285. Minn. Stat. § 144.417, subd. 4 (2007).