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New Jersey Law Prohibits Employment Discrimination Based on Tobacco Use

New Jersey’s employment laws prohibit employers from discriminating against employees and job applicants on the basis of a wide range of factors. The New Jersey Law Against Discrimination provides the broadest protection against numerous discriminatory acts and policies, such as race discrimination or sexual harassment. Other state laws bar employers from discriminating on the basis of other factors. New Jersey’s “Smokers’ Rights Act” (SRA), enacted in 1991, addresses discrimination by employers because an employee uses — or declines to use — tobacco products. Other areas of state law restrict smoking in workplaces, so the SRA mainly addresses employers who seek to penalize employees for behavior outside of work.

The SRA states that an employer may not refuse to hire someone, fire them, or “take any adverse action…with respect to compensation, terms, conditions or other privileges of employment” because that person “does or does not smoke or use other tobacco products.” The statute makes an exception for situations when an employer has a “rational basis” for an act that would otherwise be unlawful. This “rational basis” must be “reasonably related to the employment.” When legislators use vague language like this, it is often up to the courts to determine what is “rational” and “reasonable.”

The protections provided by the SRA do not override other state laws addressing tobacco use in public. They also may not conflict with employment policies that limit or prohibit smoking in the workplace during work hours. A law passed by the New Jersey Legislature in 2005, for example, effectively bans smoking in all workplaces throughout the state. The SRA is similar to the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA). This statute allows recreational cannabis use and, with some exceptions, bars employment discrimination based on cannabis use outside of work. They are both relatively unexplored areas of New Jersey employment discrimination law.

If an employer violates the SRA, an aggrieved employee or job applicant may file a civil lawsuit. A job applicant denied a job because of their tobacco use, or lack thereof, can recover compensatory damages, attorney’s fees, court costs, and injunctive relief. An employee may recover the same remedies, but the statute specifies additional forms of injunctive relief in the form of reinstatement and damages in the form of lost wages and benefits. The employer may also be subject to civil penalties.

As mentioned earlier, the SRA’s vague language invites courts to interpret the meaning of terms like “rational” and “reasonable.” In the three decades since the SRA became law, however, few courts have considered this question. The Appellate Division ruled on a dispute under the SRA in an unpublished 2012 decision. The court noted the lack of precedent, so it based its ruling, in part, on a decision from Florida with similar facts.

The employee in the 2012 case worked as a pest control technician. He spent most of a typical workday traveling to customers’ houses in a company truck. The employer reportedly asked him to sign a document acknowledging that he could not smoke in the company vehicle. The employee alleged that he was fired after refusing to sign, while the employer claimed that he quit. The court found that the employer had a rational basis for its actions because of the danger posed by smoking in close proximity to pest control chemicals.

If you are involved in a dispute with your employer in New Jersey or New York, you need a knowledgeable and skilled employment lawyer on your side. Please contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to discuss your case.

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