I've had occasion to demonstrate this exact condition, on three separate occasions, to former employers by having had assorted courts tell them first-hand, and in so many words, to either revise this curious and unlawful viewpoint, or else pay rather exceptional amounts of civil damages.
If you ACCEPT, as presumably a condition of employment AT THE TIME you accept employment, the condition that your employer may in some/any fashion regulate your non-business, off-time, and otherwise lawful activities, well, fine. That's up to you. No quarrel here.
When, however, AFTER having been employed, the employer makes such an attempt without your consent, he/she/it is in DEEP weeds at civil law.
Consult your attorney; you'll find out immediately that I've told you nothing but simple and easily demonstrable fact.
FReegards!
SAJ,
Sorry, you work for someone they make the rules, period. You can think Civil law is going to change em, it won't. You work for anyone BUT yourself you are at their mercy, period.
And as I have said before, even if these employees would get a judgement against a company, so what? They up front cost to get rid of some die hard smokers today to standardize a policy across all employees for the future, which is a move that will indeed drop their costs significantly EVERY SINGLE YEAR... the ROI is there to justify it.