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Employers may be within their legal rights to refuse outright to hire smokers, says David Lowe, advisory services manager for the Employers and Manufacturers Association.
"We think that, on balance, legally employers may be able to say, 'Look, we're not hiring you because you're a smoker'," he says.
Lowe provides employment advice to the 7500 businesses which are members of the EMA. But he says that although smokers may legally be banned from jobs, it is unlikely that will happen.
"It's possible in the legal sense, but given the tight labour market, I have to wonder why an employer would do that."
Some organisations have already banned smokers from employment, particularly in certain sectors.
"There are some businesses where there will be all sorts of issues regarding their image and their reputation. Smoking will be something that for some particular businesses will actually be harmful to the way they do their business," Lowe says.
Those businesses aren't telling people whether or not they can smoke. They are simply saying that if you do smoke, you can't work for them. But for businesses which already have smokers on the staff, employers could find it hard to get rid of them.
"An employer would really struggle to justify ending someone's employment because they are a smoker."
Sacking an existing employee on the sole basis that they smoke might be a stretch. But employers now realise that having smokers clouding up their front entranceway is not a good look. Lowe says most employers will usually prevent this from happening.
"Usually employers make some sort of facility available where they are out of the public eye. Smokers might be asked to use a back entrance," Lowe says.
The only feasible argument a smoker could use to fight discrimination on the basis of their habit is to claim it as a disability, Lowe says.
"The only thing we can find is that someone may try to argue they are addicted to cigarettes and, therefore, that is a disability. You are not allowed to discriminate on the grounds of a disability."
But Lowe says that is probably clutching at straws. "It's probably a bit of a long bow to draw but, as far as we know, there hasn't been a test case on that."
For many workplaces, smokers would not even be considered for employment. Ben Youdan, director of Action on Smoking and Health (ASH), has no worries about saying smokers are not welcome to work there.
"At ASH, we wouldn't employ a smoker. Other kinds of healthcare organisations could arguably say that it's against the interests of what we do to employ smokers," Youdan says.
Youdan, who was attending the Asia Pacific Conference on Tobacco Control in Taipei, Taiwan, says there are good reasons not to hire a smoker.
"Smokers are far more likely to be sick and have more days off a year as a result of their smoking. They're more likely to die younger, so that's years that you're losing in terms of productivity."
Smokers can also cause disquiet among their co-workers. "Occasionally people do get quite upset because they feel like they're working longer hours because they've got colleagues who nip out for 10 minutes every now and again for a cigarette. If you're smoking 10 cigarettes a day, that's an hour and a half you're getting in what people feel are extra working breaks."
Youdan says one way around people taking cigarette breaks is to ban any smoking during work time.
"Particularly if they're smoking outside the front entrance, because it's all about the image of your workplace. You still have people that are having to walk through that second-hand smoke as well," Youdan says.
As well as the lingering odour which clings to smokers and follows them into the workplace is the issue of second-hand smoke. Second-hand smoke is believed to kill 350 people each year in New Zealand. But Youdan says most smokers want to quit and employers should help them to do so.
"It makes sense economically for workplaces to not have smoking during work time and to provide support for people to stop."
Employers who have smokers on their workforce will often pay more for any type of health plan they offer.
"It's not just health insurance. Your home insurance costs more if you're a smoker. Car insurance can cost more if you're a smoker. Insurance companies have known about this for years that there are more risks associated with being a smoker," Youdan says.
"It's up to each individual employer to decide how far their smoke-free policy will go but, if the nature of the job means the employee should be a non-smoker, then clearly it is legal to choose a non-smoker over a smoker."
