While German lawmakers consider implementing a non-smoker protection law and banning smoking in restaurants, a case in Ireland revealed that excluding smokers from a job selection process doesn't conflict with EU law.
Should Germany ban smoking in restaurants?
While the rights of non-smokers is a hot topic for lawmakers right now, the absence of legal precedence for the rights of smoking job-seekers was brought to attention recently when an Irish call center noted in a help-wanted ad that smokers wouldn't be considered for the position.
Not hiring someone because he or she smokes is not prohibited under EU law, according to EU Commission officials. Anti-discrimination hiring laws, which have also been passed in Germany, only forbid discrimination based on age, handicaps, religious conviction and sexual orientation.
About 30 percent of German restaurants offer non-smoking sections
"There isn't any case law" concerning smoking or not smoking as a selection criterion for filling a job position, said a spokesperson from the labor ministry in Berlin. Each individual case would have to be brought to court for a decision.
While Ireland, Italy and the Netherlands are among the European Union member states that have recently implemented smoking bans in public places, the EU is now also putting pressure on Germany to follow suit.
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But not all in Germany back the plan to ban smokers from restaurants.
"We reject a total smoking ban in restaurants," Edda Müller, chairwoman for the National Association of Consumer Centers told the Berliner Zeitung daily. Consumers are adults and can decide for themselves, she added.
The organization would support more non-smoking areas in pubs. Only about one-third of the food establishments in Germany currently offer separate smoking and non-smoking sections.
The Nutrition-Consumption-Restaurant trade union (NGG), on the other hand, said it favors a general smoking ban in restaurants.
"Employee rights key to smoking ban"
Currently, employers are legally required to offer smoke-free options in the workplace. Eating establishments, however, represent an exception to this law, which NGG spokeswoman Karin Vladimirov said should be reconsidered in order to protect restaurant employees.
Suspending this exception in the labor law would automatically result in a smoking ban in restaurants, which Germany's labor ministry called the "easiest solution."
Restaurant law is currently legislated at the federal level but will be shifted to the state level under upcoming federalism reforms, adding uncertainty to the chances of suspending the clause exempting restaurants from protecting non-smoking employees.
There's no law that prohibits employers from making smoking habits a hiring criterion
Installing special filters or smoke removal systems has been suggested as an alternative to a complete smoking ban. If this doesn't help, said Vladimirov, then the NGG union would support a complete smoking ban.
The union, which represents employees working in industries associated with gastronomy and food and drink consumption, was previously against the ban. It revised its position after taking into account the interests of restaurant employees and increased health awareness among the general population, Vladimirov said.
The protection of restaurant employees against second-hand smoke "is ultimately the key to a smoke-free food industry in Germany," said Friedrich Wiebel, chairman of a doctors' organization that focuses on smoking and health issues.
Parliament awaits legislative proposal this fall
Germany's parliament meanwhile is preparing to review legislation protecting non-smokers in the autumn. Margrit Spielmann, a health expert from the Social Democratic Party, drafted a proposal that has been signed by 140 parliamentarians so far.
The document expresses regret that German law effectively does not yet offer any protection against second-hand smoke, reported German news agency dpa. Furthermore, there are no mandatory smoke-free zones in public buildings and the observance of non-smoking areas in restaurants is not officially verified.