The Constitutionality of an Off-Duty Smoking Ban for Public Employees: Should the State Butt Out?
During the past several years, restrictions imposed by states, cities,and municipalities on smoking in public areas have survived court challenges and become almost commonplace.' Likewise, both public and private employers have limited smoking in the workplace. A further restriction that seems to be emerging, however, is a refusal by both the state and a growing number of private employers to hire or to continue to employ smokers. These restrictions limit the employee's freedom to smoke not only in the workplace, but also after working hours and within the privacy of the worker's home.
This Note will address the constitutionality of such a restriction on public employees. The analysis will be based on a recently passed Massachusetts statute that forbids policemen, firefighters, and certain other public safety employees to smoke on or off the job. Part II describes the Massachusetts statute and the reasons behind its passage. Part III discusses the health and economic costs of smoking to society, smokers,employers, and those unwillingly exposed to smoke. Part IV addresses the background of smoking restrictions in general, focusing on restrictions on smoking in the workplace. Part V analyzes the constitutionality of smoking restrictions in light of the only court decision involving a challenge to a similar restriction and considers other possible constitutional arguments. Part VI considers other possible challenges to the anti-smoking statute under federal and state statutes. Part VII discusses the enforceability of the statute and possible constitutional challenges against enforcement. Finally, Part VIII concludes that although the statute probably is constitutional, there are serious practical and constitutional problems with enforceability and a broader anti-smoking restriction probably could be challenged successfully.