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According to this online USA guidance many US states give smokers the same sort of anti-discrimination class as for example pregnant mothers or other groups.

Most states have some laws that protect smokers from discrimination

and

However, 29 states and the District of Columbia do prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco.

What, in these states, constitutes 'the workplace'? For example, while under mandatory Covid19 homeoffice, while participating in teleconferences from home, is the home a 'workplace' for the purposes of these laws? Can an employer dismiss a smoker for smoking at home during mandatory homeoffice (and on a teleconference) or would this be perceived as discriminatory?

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In the US what is/are the legal definitions of 'workplace'?

Absent a statutory or contractual definition, the plain meaning is adopted "unless doing so would result in absurd, unintended consequences", Hassell v. Bird, 5 Cal.5th 522 (2018).

Pulaski v. California OSHA, 90 CalRptr.2d 54, 69 (1999) points out that "'[w]orkplace' is commonly understood as covering any place where work is performed. This is especially true where worker health and safety is concerned". See also [non-precedential] [Covia Communities v. McInerney, (Court of Appeals of California, Dec. 2019)]3 ("The plain meaning of the term [...] does not limit 'workplace' to one location [...]. Nor does the plain meaning of 'workplace' require that the employer own the subject property").

Thus, a person's homeoffice also fits the definition of 'workplace'.

Can an employer dismiss a smoker for smoking at home during mandatory homeoffice (and on a teleconference) or would this be perceived as discriminatory?

Discriminatory means that the dismissal is motivated by the status of employee being insofar as a smoker rather than his act of smoking during the performance of work. By way of analogy, consider the laws against discrimination based on a person's sexual orientation: The ban on that discrimination does not entitle the employee to engage in sexual intercourse during a teleconference.

Most bans on smoking in the workplace are intended to protect other employees' health and safety. From the remark in Pulaski, it follows that smoking at home during mandatory homeoffice time would not impair other employees' health and safety.

That being said, the employer might have valid reasons for prohibiting to smoke during a teleconference. For instance, doing so could be perceived as unprofessional, and therefore detrimental to the image of the company.

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  • According to that logic, any place at all fits the definition of 'workplace'. Is this correct? Is this essentially saying the concept of 'workplace' has no specific meaning at all in US law? I see no other way of identifying someone as a smoker other than that they actually smoke - so the homosexual as actually having homosexual sex analogy IMO does not apply. However, if there is no explicit ban on smoking during teleconferences - not written in any code of conduct - in the states where discrimination law against smokers applies, is dismissal for smoking discriminatory? – Frank Jun 1 at 9:37
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    @Frank Not all places fit the definition of 'workplace'. Only those places where work is performed do. The analogy about sexual orientation illustrates the difference between possessing a characteristic and manifestly exercising it. Your question is whether dismissal for exercising a characteristic (i.e. smoking) during a teleconference constitutes discrimination. Discrimination only has to do with possessing that characteristic. Most likely the statutes you have in mind protect the possession of that characteristic, but don't necessarily entitle to its exercise in the workplace. – Iñaki Viggers Jun 1 at 9:54
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    @Frank "I see no other way of identifying someone as a smoker other than that they actually smoke". A person can be identified as smoker by seeing him smoke during the teleconference, or by administering some test to him (similar to how some employees are asked to undergo drug tests). The former reveals an exercise of his characteristic and yet fall short of discrimination (whether lawful or unlawful), whereas the latter scenario would reveal his possession of that characteristic. – Iñaki Viggers Jun 1 at 9:58
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    This seems somewhat muddled. A pregnant mother has no choice but to exercise that characteristic, and by definition neither does a smoker - a smoker must smoke. In the office, in those states where there are smoker legal provisions, the workplace must include designated areas where the smoker can smoke. How does this apply to home office? Having sexual intercourse in public seems incomparable because it is actually illegal. Smoking in public (or private), or being pregnant in public is not. – Frank Jun 1 at 10:09
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    @Frank "the workplace must include designated areas where the smoker can smoke. How does this apply to home office?" The employee can always ask his employer if he really needs to, but it is highly doubtful the designated area will be one where and when (the important part is "when") the teleconference takes place. As for nomadic workplaces where health and safety are not a matter of concern, see the last paragraph in the answer (for instance, is it professional or good [business] practice to be in a teleconference with a client and suddenly start smoking?). – Iñaki Viggers Jun 1 at 10:32

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