PERM Labor Certification: What are lawful reason to reject US Workers? (Smokers Not Welcome Here)

As part of the process of filing for a Green Card, a US Employer must obtain a Labor Certification from the Labor Department. The purpose is to demonstrate among other points, that no US Workers were available to fill the job in question. But what are some of the lawful reasons to reject US Workers? Can drinking and smoking habits come into play?
At a recent meeting with DOL representatives AILA inquired about the this topic. Approximately 21 states now allow employers to refuse to hire smokers/other tobacco users, or to make non use of tobacco a condition of employment.

a. Where such a policy is allowed under state law, and where the employer (e.g. a hospital) has a uniform policy of not hiring tobacco users, should an employer disclose its tobacco policy in PERM recruitment, and/or on the ETA Form 9089, or would it be seen as an unduly restrictive requirement by the federal government even though allowable under state law?

DOL Response

As a general matter, DOL is concerned about rejection of U.S. workers for reasons that are not disclosed on the ETA Form 9089. Where employers disqualify applicants on this kind of basis the most conservative practice would be to disclose the requirement both in the advertising when requirements are listed and on the ETA 9089.

Would refusal To cease tobacco use be a “lawful job related reason” for rejecting an otherwise qualified, but tobacco using, U.S. worker?
DOL Response

See response to Question 10.a. above. DOL is not aware of a substantial number of cases involving this issue.

Bottom line we do not suggest using smoking ot drinking habits as a reason for rejection of US workers. Keep it simple and stick with the traditional reason for rejection, such as lack of education requirement, no experience and lack of ability to work in the US.

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