Workers have right to use tobacco offsite
Published 12/02/05

Generally, smoking off site cannot get a worker fired. New Hampshire employers may prevent their workers from smoking at the company, but cannot require, as a condition of employment, that the worker abstain from using tobacco products outside the course of employment.

New Hampshire statute, RSA 155:66, gives companies the right to have a smoke free office. Employers may identify in their employment advertisements that their office is smoke free environment so that potential applicants will know at the time they apply for and receive a job that they will not be allowed to smoke at the office.

New Hampshire statute RSA 275:37-a prohibits an employer from not hiring, or firing, a worker because she refuses to abstain from tobacco product use outside the course of employment as long as the worker complies with any workplace policy.

This law protects all tobacco product users, whether the tobacco product is a cigarette, pipe tobacco, a cigar or chewing tobacco. In other words, while some employers, for a variety of business reasons, may prefer to have only non-smokers working for them, they cannot hire only non-smokers.

A violation of this law may carry criminal penalties and subjects the employer to liability for double the employee's unpaid wages. Therefore, employers must understand that while they have the right, and in some circumstances, the obligation to make a smoke free work environment, they do not have the right to limit their workers to only non-smokers.

If an employer has concerns with tobacco residuals entering the workplace through workers whom have smoked off site, the employer should discuss the issue with its employment counsel to determine a carefully drafted workplace tobacco use policy to address the issue.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.