[Lil' Hannah]

From an article on SHRM:

Legal experts say that few court decisions have addressed such company policies. However, they say that in states such as Michigan, where there is no smokers' rights legislation on the books, Weyco's policy and practices might be legal.

"There's legal discrimination and there's illegal discrimination," said Peter J. Petesch, an employment attorney who is a partner at Ford & Harrison LLP in Washington, D.C. Unless the company's actions can be shown to violate a specific state or federal law—such as discriminating against a protected class, on the basis of race or religion or the like—it might be difficult for employees and
applicants to challenge them successfully in court.

"Although we might feel a sense of moral outrage when a class of people is discriminated against," said Petesch, "it may very well be legal. There have been common-law theories advanced" in the effort to have groups such as smokers protected by job bias laws, but "they have not necessarily been successful."

Weyco's Climes, a former smoker himself who knows "how hard it is to quit," said that "our legal counsel reviewed this very closely."

However, Edwin G. Foulke, an employment attorney with the Greenville, S.C, office of law firm Jackson Lewis LLP and a former chair of the U.S. Occupational Safety and Health Review Commission, said Weyco's actions could raise issues under the federal Americans with Disabilities Act (ADA).

"I wouldn't be surprised to see somebody litigate this issue," he stated. Jury members weighing such a policy "might ask themselves, 'Is this really fair?' " he said.

Twenty-nine states have smokers' rights laws. At the same time, many states have laws banning smoking in most workplaces, setting up the potential for confusion and conflict about what workers can do—and where. Some laws and company policies extend smoking bans to outdoor property such as parking lots, and some even try to keep people who have been smoking in the previous two hours from entering a building and bringing some of the haze in with them.

According to the National Law Journal, the Union Pacific railroad company announced last year that it was implementing a no-smoking policy for all employees, both on and off company property. The firm said it questions potential hires about smoking. And Alaska Airlines reportedly has a similar policy, requiring job applicants to pass a nicotine test.

The National Law Journal noted that in a 1987 court case the 10th U.S. Circuit Court of Appeals upheld the right of the Oklahoma City Fire Department to have a no-smoking policy, finding that the rule had a legitimate purpose in promoting health and safety.

But at a private-sector employer whose workers tend to work in offices, a policy barring all smokers appears to be "extremely drastic," said Peter P. Fornal, president of Human Resource Consultants in East Greenwich, R.I., and a member of the Society for Human Resource Management's Employee Relations Panel.