Why smoking’s killing your chance at a job

Updated March 15, 2018 07:09:11

Turns out your health isn’t the only thing being harmed by your smoking habit. Your chances of scoring a job are being impacted by your nicotine cravings, employment experts say.

It’s becoming more common for employers to seek out non-smoking applicants for the jobs they advertise.

A search on Seek this week showed dozens of jobs available Australia-wide that require applicants to be non-smokers.

Positions include truck drivers, roofers, gardeners, office administrators, receptionists, chefs and more.

But not considering someone for a job because they smoke — is that legally OK?

So is smoking covered by the Anti-Discrimination Act?

It’s not.

“Smoking is not a protected attribute, and it is not an impairment under the act,” the Anti-Discrimination Commission Queensland says.

“Although smokers might be addicted to nicotine, it is possible to deal with the addiction by using patches rather than smoking.

“It is acceptable to impose reasonable smoking restrictions while at work or in rented premises without offending the Anti-Discrimination Act.”

According to Shine Lawyers’ employment law expert Christie Toy, there is no one single law that deals solely with job adverts and what can and cannot go in them.

“But employees and job candidates are protected by Anti-Discrimination laws,” Ms Toy said.

“Employers need to be careful when advertising for roles and selecting who gets the job that they aren’t discriminating.”

Anti-discrimination legislation prevents discrimination on the basis of race, age, sex, sexual preference, marital status, family and carer’s responsibilities as well as things like disability and impairment.

“Smoking doesn’t explicitly fall into one of these categories as discrimination — so while the advert might appear to be discriminating against smokers it’s likely that, under the law, it actually isn’t.”

Ms Toy said employers should be careful about what they put in the ad and be clear on why certain things are listed.

“An employer will usually have a defence under anti-discrimination law if they can prove that the employee couldn’t perform the role, even after they had made adjustments, due to not meeting this requirement,” she said.

“For example, a person too young to legally hold a driver’s licence couldn’t be considered for a pizza delivery job that requires them to drive.”

Ms Toy said the bigger question was whether smoking as an addiction could be considered a disability or impairment.

“We have recently seen some decisions coming out where ‘addiction’ has been considered a form of disability,” she said.

“These type of decisions include addiction to drugs and gambling. A similar case would need to be run about smoking, and it would need to be established that it creates an addiction that is viewed as a disability or impairment.”

What about smoke breaks?

There is no legal requirement for an employer to provide “smoke breaks”, according to Ms Toy.

“It would be up to an employee to manage the ‘meal break’ time that they are given and smoke only in those set times,” she said.

“All modern awards set out when and how long meal and other breaks should be.

“An employer may also have a workplace policy that sets out when additional breaks can be taken so if you are a smoker it would pay to check your workplace policy.”

Some companies are taking interesting steps to encourage employees to break the habit.

Last year in Japan, a marketing firm began offering its non-smoking workers an extra six days of paid leave a year after they kicked up a stink about their smoking colleagues taking too much time during cigarette breaks.

In 2014, a Centre for Economics and Business Research study found the average British smoker takes four smoking breaks during the work day, lasting about 10 minutes each, as well as taking nearly an entire day more in sick leave a year than non-smokers.

“This equates to 136 hours of lost productive time every year for the average smoker — costing the average business $2,700 in unproductive wages.

Why only hire non-smokers?

There are many reasons, Employee Matters director Natasha Hawker says.

“An employer could argue that they have an obligation to provide a safe place of work, because they do,” Ms Hawker said.

“If the team were at a social function and they were breathing in second-hand smoke, the employer could potentially be breaching their duty of care.

“They’d be very keen to not be putting their team in that position of exposure.”

It could also come down to professional grooming standards.

“If you’re completing an up close and personal services such as waxing or nursing, then it’s not very pleasant if you’re being breathed over by someone who just had a cigarette.

“Nicotine stains the fingers or teeth, it’s not necessarily the image that an employer may want to portray to their clients.”

One obvious reason against hiring a smoker — health.

“There might also be a very valid argument for business owners not to employ smokers due to their increase health risked, or concerns about them taking excessive personal leave,” Ms Hawker said.

Cancer Council Queensland CEO Chris McMillan said they encouraged workplaces to consider going smoke-free, as well as provide their staff with support to quit.

“Having a smoke-free workplace not only improves the health of those that smoke, but research shows this will increase productivity, decrease absenteeism, and reduce other employees being exposed to second-hand smoke,” Ms McMillan said.

“A smoke-free workplace also provides a supportive environment for people that smoke to reduce their habit, or quit altogether.”

Your thoughts?

Opinions were split when one of the ads seeking a “non-smoker” was posted to the ABC Brisbane Facebook page.

We asked whether the condition was fair or not, this is some of what we heard back:

“Most places you cant drink alcohol at or alcohol-free so I have no issues with smoke-free work places or not smoking in work hrs [sic] is also fair. But if people smoke while home thats [sic] their choice not a good one lol but theirs to make.” Matthew Hobbs

“Imagine the outrage if I was an employer and refused to hire vegans and vegetarians?” Tanner Russell

“Smoking is perfectly legal though, I dont [sic] understand why people say its [sic] fair, would it be fair if they said non-drinkers? Vegan only need apply? Only right-handed people need apply? It is discriminating because what if the best applicant was a smoker? As long as the applicant, smoker or not, met the job criteria, I don’t see a problem with the applicants habit.” Michael John

“Fair enough. If you are in an office sharing space with others. Smokers smell and smell foul. I wouldn’t want one sitting next to me either unfortunately.” Therese Theile

“A good job requirement! Promotes a healthy work environment.” Kristofor Lawson

“If I were the employer I too would make that a requirement on a number of levels. Smokers stink of cigarette smoke. They take too many smoke breaks/loo breaks. Having my customers having to deal with ‘smokers alley’ in order to approach my business because the staff were smoking outside and then to deal with the litter of cigarette butts left outside the building. I agree totally with this employer.” Dawn Blackburner

Topics: smoking, health, laws, law-crime-and-justice, brisbane-4000, qld

First posted March 15, 2018 06:53:15

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