A Primer on Employment Law and Smoking Breaks
In the world of employment law, smoking breaks refer to the periodic intermissions that employees may take during work hours to smoke tobacco or other substances. These breaks can be a point of contention between employers and employees, particularly when considering the impact they can have on productivity, workplace policies, and labor laws. It is crucial for both employers and employees to understand the regulations and best practices surrounding smoking breaks in order to foster a supportive and legally compliant workplace.
For employees, the right to take smoking breaks can be seen as a critical component of their personal freedom, and a necessary accommodation for addiction. The laws regarding smoking breaks are meant to balance employees’ rights to smoke with the employer’s right to create a productive and safe work environment. These laws often include provisions for designated smoking areas, break times, and non-smoking policies. Non-smoking policies are also seen as a way to protect the health and wellbeing of employees and customers, ensuring that non-smokers are not subjected to secondhand smoke, which can have detrimental effects.
For employers , the implementation of smoking breaks can present challenges in terms of productivity, workplace culture, and compliance with the law. Employers are required to follow state and federal labor laws that govern smoking breaks, and failure to comply with these laws can lead to legal disputes and financial liabilities. Employers must also balance the need for a productive and efficient work environment with the need to accommodate the smoking habits of their employees. Employers must create policies that address the scheduling and management of smoking breaks, as well as consideration of employees who may not smoke and who can be impacted by the carbon smoke that has permeated the workplace.
The importance of understanding the employment law surrounding smoking breaks cannot be understated for both employees and employers. Employees should familiarize themselves with the laws and company policies regarding smoking breaks in order to be fully aware of their rights and responsibilities in the workplace. Employers, on the other hand, must fully understand their obligations and prohibited actions as set forth by labor laws in order to avoid possible lawsuits with employees.
Legal Rights and Responsibilities
The legalities surrounding smoking breaks vary by state and federal regulation. Generally, the "Rest Break" laws only apply to non-exempt employees in California, and each state will have its own laws that apply to minors. At the federal level, there are no laws regarding smoking. Further, there are no specific laws regarding the length or timing of smoking breaks that apply at the federal level either. However, the Fair Employment and Housing Act does require employers to make "reasonable accommodation" to allow employees with disabilities or medical conditions to smoke if it is considered a part of that disability.
Further, in California, the California Fair Employment and Housing Act (FEHA) does not indicate an express right for an employee to smoke. Thus, smoking during work hours, even during a rest period, is not a right expressly acknowledged by law.
However, many workplaces and industries permit employees to take smoking breaks as a courtesy and often have established policies in place that govern how such breaks can be taken. For example, policies might limit the use of other employees to sub out work during the time spent taking a smoking break. If an employee requests a smoking break and they are unable to take a break due to operational needs, that employer is not obligated to make that accommodation to the employee. However, an exception exists under the California Labor Code when an employee makes a request for a reasonable accommodation on a disability or medical condition.
Guidelines for Employers
To start, employers should have appropriate policies in place that clearly inform employees of their expectations concerning smoking. Although smoking is often prohibited while working, employers can still create policies in Michigan for designated times and places where employees can smoke. It is good practice to warn employees that not following the required procedures could result in discipline.
In addition, employers should also consider giving written warnings to an employee who smokes during working hours, and remind said employee of the employer’s policies and his or her disciplinary history with smoking, if any. With this, it will help document a pattern of behavior that may show intent not to follow the employer’s smoking policies.
In many facilities, you have employees who are not just co-workers; they are often serving separate roles. If company policies permit employees to take designated smoking breaks, it is best practices to have a procedure in place to ensure employees are in their assigned duties and not smoking while performing other jobs. Employers can put the onus on employees if needed as a way to encourage their co-workers to be mindful of the rules. For example, management can designate certain individuals to serve as "watchdogs" against smokers in order to hopefully reduce the incidence of smoking where policies prohibit it.
Successful management of smoking in the workplace requires good policies, great communication, and a balance of rights between non-cigarette smoking employees and those who do smoke.
Takeaways for Equality in the Workplace
One of the most common concerns brought up to me about smoking breaks that I see in the workplace is that too many other employees do not get the same amount of breaks as the smokers do in the workplace. Thus, employees feel like they are losing out and the disparity in the workplace may create resentment amongst the employee group. Further, it can be difficult for the employer to track the time spent on these breaks to ensure that the time away from the workplace does not go over the allotted amount of time for any one or multiple breaks.
It can be challenging to govern the scenario of smoked versus non-smokers as smoking might not be allowed in the workplace; however, it is up to the employer to ensure the workplace is treated fairly and there is equality amongst the employees through their activities and opportunities. The employer must bear in mind that it too may be subject to scrutiny as they will need to treat all employees the same with respect to time away from the workplace to ensure that they are not discriminating against a class of employees. Thus, the employer should speak to all of its employees about the issue of fair treatment as it relates to the smoking breaks, if it has not already done so upon implementation of the smoking policy.
Overcoming Issues and Disputes
When it comes to conflict, "when in doubt look at the law." Making your smoking policies known and providing outdoor space designated for no-smoking or "area-smoking" will go a long way to establishing a good standing with staff, and helping the company "control" the smoke issue. Still, disputes can arise when employees reside in different jurisdictions, where the smoking laws vary. Further still there are some gray/ legal issues that need to be addressed regardless of region. Here are just a few that have crossed our desks over time. Taking action against a member of staff. Inconsistency in dealing with employees who smoke is considered harassment. An employee who smokes cigarettes and is let go for the offense when another employee (who also smokes) is not, can mount a challenge. It is wise to ensure consistency around any company policy, and not single out clients for discipline. A company policy should be enforced with all staff. Designating outdoor locations. Not all local laws on smoking are created equal. Still, most territories have some regulations on public spaces, and limits on smoking in these areas. More often than not the majority of companies need to define outdoor smoker areas. If a certain space outside of the office is provided free of charge to staff to smoke, issues may arise if the employee is smoking near other businesses (or privately owned property) without permission. Accommodating outside vendors . This is the second most asked question we receive. Most company policies are written with the singular focus on staff, but staff members require and expect that their visitors (vendors, sales reps, etc.) be given similar latitude. Keeping this in mind will help you develop a policy that is not only fair to staff, but to your clients too. It’s helpful to be clear on the boundaries of your policy, especially where guests are concerned, and communicate this to your staff so they know how to enforce or make request of any visitor. Disciplining staff on breaks. Ideally, you want to encourage your staff to return promptly from breaks. You need to be able to ensure your employees don’t take extended lunch and breaks, and cigarette break is no exemption. In addition to this, there have been instances where staff have been fined for smoking in local restaurants or cafes and returning to work within the confines of the company (in this case the restaurant or cafe was not explicitly part of the company property but was still within smoking distance from the office). In these cases the policy should clearly outline the allowance or limitation of smoking on company time, as well as the potential near by locations that staff are not allowed to enter or exit within smoking distance of the office. We suggest producing a list of local restaurants or cafes that do allow smoking and share this when your policy is distributed.
Real-Life Examples
Demand for clear regulations on smoking break policies has been heard in courtrooms and arbitration tables from Canada to the Caribbean. In an arbitration decision from Trinidad and Tobago, a worker who had been suspended for half a day without pay for leaving his station to smoke successfully grieved the suspension, taking his employer to task for its failure to provide a smoking area and its lack of a written smoking policy. He argued that it was unsafe for him to go down three flights of stairs carrying important documents that could be destroyed if they got wet and that he was leaving his station to pick up such documents when he had been caught smoking on his break. The arbitrator concluded his grievor’s action was "reasonable under the circumstances" and that the employer’s policies were poorly stated and communicated. His suspension was overturned and was not to be considered disciplinary in nature.
At a women’s shelter in Canada, a counseling and outreach worker alleged that she was required to work alone at nights. Her employer responded to her grievance by drafting a smoking policy that included information about smoking in the workplace, providing a smoking shelter, outlining procedures concerning smoking in the workplace and detailing union and management responsibilities related to employee non-compliance. In response, the worker’s union withdrew her grievance. The grievance procedure, particularly around smoking, proved to be constructive in discussing and resolving the issue.
A Canadian manager claimed that she had been harassed at work because a co-worker who smoked didn’t have to clean up the sticky marks left behind because of his habit. The company ERC agreed that the manager had been mistreated and that it could have helped to intervene, but ruled against her on the basis that she had not shown a desire to be accommodated by the employer. By failing to discuss the issue with her superiors, the manager failed to act in appropriate accordance with her job responsibilities. The grievance alert employers that while the company is obligated to accommodate employees with disabilities, employees have an obligation to help solve issues that arise.
In the overnight shift case discussed above, the smoking policy developed by the Canadian women’s shelter included a procedure for employees removed from the factory environment due to smoking breaches. Employees were removed from the area in which the breach occurred, and then interviewed in a designated office away from employees still working in the factory. Not only did the company act fairly with its employee in the case but the policies and procedures implemented gave the employees some control over their breaks and the ability to communicate their grievances.
While smoking bans present clear challenges to employers regarding addiction and the workplace, cases involving the accommodation of addicted employees in an area where management has the exclusive right have proven that accommodations can be made without major infringement on the rights of employers. Even when it has seemed impossible to broker a settlement between the addicted employee and his/her employer, the workplace nevertheless has a vested interest in finding a solution.
Looking Ahead: The Future of Smoking and the Workplace
While the effects of smoking and its relationship with the workplace may still be a hot button topic, forward-thinking employers and businesses are beginning to implement stricter policies that promote public health. Those who are trying to enact marijuana legislation had major wins across the country in the past election, but that isn’t to say that the use of marijuana in the workplace will be widely accepted. This includes whether or not employees will be allowed to take breaks to use marijuana while at work (legally) or if it is a prescribed by a doctor. These concerns, however, are separate issues from smoking cigarettes , which is currently used for stress relief by some workers.
Future trends of employment law will include banning smoking altogether, similar to how smoking bans have already been implemented in other countries, including Canada. There is the possibility that employers will be required to ask about smoking during the hiring process, and be able to deny employment to those who smoke. Such policies will be considered lawful if the employer is able to show business necessity. At the very least we can expect continued public health campaigns that support policies refraining from smoking on the job and reduced smoking breaks in the workplace.