I have an employee who comes to work at our health center smelling strongly of tobacco smoke. Can I require this person not to smell like smoke? It is especially important as many of our patients have impaired respiratory systems that make it hard for them to tolerate the secondhand smoke. Thank you!

Ann Kiernan replies:

You have focused on the right issue--the work-related impact. Given the medical needs of your patients, I think you can legally require this worker to avoid the smell of cigarette smoke when reporting to work. (It is not clear whether the employee is a smoker or is picking up the odor from someone else's secondhand smoke.)

About half the states--including yours, West Virginia--have laws that bar employers from discriminating against workers because they use tobacco products off the job. Interestingly, West Virginia's statute (W. Va. Code § 21-3-19) exempts an "employer which is a nonprofit organization which, as one of its primary purposes or objectives, discourages the use of one or more tobacco products by the general public". You may want to talk to a local lawyer and find out if your health center would qualify for this exemption. If so, your health center could decide as a matter of policy not to hire smokers.

How to handle smokers and other privacy issues are covered in our management training program, Managing Within the Law, Part II.