Can you ask a person if they smoke in an interview?

UPDATED: Oct 1, 2022

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Can you ask a person if they smoke in an interview?

I work at a childcare center and would like to know if it is legal to screen out potential employees who smoke. We are having an issue with a parent who says that Massachusetts does not have smokers rights and therefore we can ask this question.
I disagreed and told them that we could not discriminate employment based on personal lifestyle choices a person makes so long as they are legal.

Asked on February 6, 2019 under Employment Labor Law, Massachusetts


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You are incorrect and the parent is right. An employer may inquire about, and deny employment to, anyone for any reason not specifically prohibited by law (such as their race, color, national origin, religion, age 40 or over, disability, or sex) and there is no law protecting the right to smoke. You can inquire about and screen out employees on the basis of smoking--or piercings or tatoos, or that they watch "Game of Thrones" or like to listen to the Sex Pistols or Suicidal Tendencies, that they don't laugh at a joke you made during the interview, prefer cats to dogs, etc. Remember: employment is employment at will: the employer can refuse to hire someone for any reason if that reason is not specifically barred by law.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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