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I own a bakery/cafe that promotes healthy eating as we make

everying from scratch every day...
I own a bakery/cafe that promotes healthy eating as we make everying from scratch every day, including the breads that make up our sandwiches. The smell of fresh baked products always lures in customers. Would it be illegal to ask a potential employee in an interview if they smoke or use tobacco products?
JA: Have you documented this or discussed it with HR?
Customer: What do you mean by documented? I am the HR being that I own the bakery.
JA: Is the employment agreement "at will," union, full time or part time?
Customer: Part time - small business
JA: Anything else you want the lawyer to know before I connect you?
Customer: Being that we bake everything from scratch, grind our own wheat, and feel it is important for our employees to know and taste our products in order to sell them, can I ask a potential employee if they are gluten-free or have any special dietary issues (i.e. vegan, vegetarian) that would prevent them from tasting products in order to sell to customers?
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Answered in 2 minutes by:
10/5/2017
Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 35,329
Experience: More than 30 years in legal practice.
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Thank you for using JA. I am Loren, a licensed attorney for over 30 yrs., and I am here to help.

I am a certified expert on JustAnswer since 2009, with nearly 100% in 5 star ratings. So, we should be able to work through your problem.

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Customer reply replied 2 months ago
Online would be great...thank you for your time.

It is not a good idea to ask about smoking. Even if your company enforces a strict no-smoking policy, you cannot ask applicants if they smoke cigarettes. Even though smokers are not a protected class, per se, doing so violates their privacy and delves into their physical and emotional health, topics off-limits to employers. Even if you're concerned that hiring a smoker might be detrimental, you can only address issues directly related to job performance.

I am sorry. I wish I could tell you otherwise, but I do not want you incurring potential liability.

If (and only if) you are completely satisfied that your question is answered, please remember to leave a favorable rating (click 5 stars in the rating section on this page). It is the only way that I am credited by JustAnswer for answering your question.

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Customer reply replied 2 months ago
I figured so on the smoking, but just thought I would double check. Do you have advice on the dietary issues? Is that the same as smoking, even though it would relate directly to their job performance?

You can only really ask about job related issues. So, dietary issues are also off limits; maybe even more so than smoking, since the dietary issues may be related to disabilities or other health issues.

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Customer reply replied 2 months ago
Understood. That really stinks for me. Where is my protection for my brand as a small business owner? That's a rhetorical question :-) Thank you for your time!
You are very welcome.
If you have no further questions, and have not yet done so, please remember to leave a favorable rating (click 5 stars in the rating section on this page). It is the only way that I am credited by JustAnswer for answering your question.
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Loren
Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 35,329
Experience: More than 30 years in legal practice.
Verified
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Loren
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Category: Employment Law
Satisfied Customers: 35,329
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