Do Employers Have to Give Smokers Breaks?

Smoking is a heavily regulated activity. Scientific studies on the harmful effects of smoking and second-hand smoke have resulted in state legislatures cracking down on places where people can legally smoke cigarettes. The days of being able to smoke at the office are gone. While an employer can allow smoking breaks, it is not legally obligated to do so.

General Rule

State laws vary with regard to smoking and employment laws. In general, there is no “right” to smoke. An employer can prohibit smoking and they do not have to give employees a smoking break. Smoking is not considered a health condition, such as a disability, and state laws generally allow employers to prohibit smoking on the premises. While state laws allow employers to prohibit breaks, they also allow an employer to provide smoking breaks -- but the privilege must comply with relevant smoking regulations.

Regulations

If an employer does allow for smoke breaks, the break must comply with any relevant anti-smoking regulations. The regulations also vary by state. Often, regulations prohibit smoking within a certain distance of public buildings and access. In Washington, for example, state laws prohibit smoking within 25 feet of a public entrance. If an employer does allow employees to take smoke breaks, it should create a comprehensive smoke-break policy and distribute it to the employees. If an employee violates state smoking laws, the employer could be liable for any penalties.

Smoking Indoors

While state laws generally allow employers the option to provide smoke breaks, the extent of the privilege may be limited. Often, employees cannot smoke indoors. In New York, the Clean Indoor Air Act bans smoking in various indoor spaces, including places of employment. That particular law even applies to private offices. An employer cannot provide a smoke room for its employees under the act and faces significant consequences for violating the law.

Other Issues

Cigarettes are addictive, and it can be difficult to cope with a no-smoking policy. While laws allow employers to ban smoking, state laws may also some degree of job protection for smokers who lawfully use tobacco. In North Carolina, for example, it is illegal for employers to discriminate against an employee who smokes while off the job. Because smoking rights vary by state and employer, employees should discuss the matter with their employer and, if necessary, an attorney for independent advice.

References

• New York State Department of Health: A Guide for Employers to New York State's Clean Indoor Air Act
• Washington State Department of Labor & Industries: Breaks and Meal Periods
• North Carolina Department of Labor: Breaks -- What to Know
• Texas Workforce Commission: Smoking Breaks
• Environment, Health and Safety Online: What Breaks Am I Entitled to Under FLSA?