Employment Laws for Smoking Employees

According to statistics provided by the CDC [Current Cigarette Smoking Among Adults in the United States | CDC] in 2019, nearly 14 out of every 100 U. S. adults aged 18 years or older smoked cigarettes. This is an estimated 34.1 million adults in the United States who smoke cigarettes. These statistics may beg the question; what laws are in place to accommodate smoking employees in the workplace? This article will discuss some aspects of employment laws catering to employees who smoke.

A common question asked is what accommodations are made in respect of employees that smoke in the workplace. Firstly, it is essential to note that the size of a business plays an important factor in California workplace smoking laws. There must be more than five employees in a workplace for smoking laws to apply.

That being said, another question asked is if there is an allocated smoke break for smoking employees. Firstly, it must be noted that there is a legal provision of unpaid 30-minute employee lunch breaks after every five hours worked. In addition, employees are entitled to a paid ten-minute rest period for every four hours worked, or this may be in the middle of the work period, depending on how practical this is. Again, however, there is no specific legal provision for smoke breaks to be designated to smoking employees. That being said, the ten-minute rest period can be used as a smoke break, or it can be during the 30-minute meal period; however, this is at the smoking employee’s discretion.

There are parameters set in respect of the designated smoking areas in a workplace. In California, smoking areas must be in nonwork areas. No employee must enter such a designated smoking area as part of their job; unless to carry out custodial work while the area is unoccupied. In addition, it is a requirement that the air in the designated smoking area is directed outside by way of fans; this air must not recirculate to other areas of the building.

Another frequently asked question is if California employers are required to make accommodations for smokers and for nonsmokers. It must be noted that there are no required accommodations for smokers. However, in businesses with five or fewer employees, employers may allow a designated area for smoking only if the following conditions are met:

  • All employees agree
  • There are no minors allowed in the designated smoking area
  • No employees are required to enter the designated smoking area

Regarding accommodations for nonsmokers, if there is a break room for smokers, there must be enough break rooms for all nonsmokers.

California laws do not provide or address whether or not employers must have policies on smoking in the workplace. However, local laws that regulate smoking may require employers to have a smoking policy in some areas. Further, employers are free to adopt policies on workplace smoking if they choose to do so.

No employer may discriminate against an employee for doing any lawful activities, including smoking, during non-working hours away from the employer’s premises.


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