Generally, employees who smoke at work have no reason for concern so long as they are not in violation of a specific work rule or the Ohio Smoke Free Workplace Act. However, the recent actions of Whirlpool may have employees who smoke thinking twice before lighting up at work. Whirlpool, in Evansville Ind., suspended 39 employees in mid-April who were observed smoking on the employer's premises. The suspensions were not for smoking, but rather lying on their health insurance enrollment application. Each of the suspended employees had previously attested that they did not use tobacco in exchange for a discount on their premiums.

Employers who find themselves in this position should exercise extreme caution prior to taking any adverse action as such action lends itself to claims of retaliation as well as discrimination. Additionally, as smoking generally occurs on an employee's own time privacy claims may also be alleged. Thus, if employers are inclined to discipline employees for lying on their health insurance application, employers must be prepared to act consistently in the administration and enforcement of such clauses. Employers are wise to seek legal counsel as part of a comprehensive review of all practical and legal ramifications stemming from such discipline.