Rent it Right
Let's assume that, in your state, no statute prohibits an employer from using an employee's off-site smoking as a reason to make negative employment decisions. This raises a practical issue for you: If you intend to check your employees' adherence to your nonsmoking policy by having them take tests (specifically, a urine test to spot nicotine), your employee might challenge your policy as an infringement on his right to privacy.
Your applicant's attempt to describe himself as "disabled" by virtue of his nicotine addiction is not a likely winner. Courts have consistently rejected that argument -- prisoners, for example, who challenged restrictive prison rules regarding smoking have not been successful.
If you check with a local lawyer and learn that your approach exposes you to some risk of a lawsuit, however, you might want to rethink your position. Perhaps using a carrot, rather than a stick, would be the better approach: Instead of negative consequences for off-site smoking, you might consider rewarding those employees who do not smoke.
For example, there's nothing wrong with offering financial rewards to those who quit, or for setting higher medical insurance copays for smokers. And if you find employees who clearly and obviously smell of smoke while at work, which interferes with the experience you want your tenants to have with management, that would justify a warning and, if necessary, a termination.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord's Legal Guide" and "Every Tenant's Legal Guide." She can be reached at firstname.lastname@example.org.
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