Overview: It's well documented that smoking is a health hazard. Furthermore, second hand smoke may be more dangerous than actually smoking. Lawmakers are aware of this, and, in most states, they have banned smoking in many, if not all, public places. Workplaces are usually considered public.
Very rarely will an employer be allowed to let employees smoke freely while intermingling with their non-smoking co-workers. If there is not a law dictating this, the employer could still be held liable in a lawsuit for any second-hand smoke problems developed by the non-smoker forced to work in the smoking environment. Therefore, it is very important that employers create, and strictly enforce, smoking policies in the workplace.
Unless there is a legitimate business goal, the employer should be very careful about punishing or discriminating against an employee for smoking outside of work. Many states have laws that protect legal activities, such as tobacco use, when an employee is not at work. If the business purpose of the employer, however, is to prevent smoking or to prevent cancer (such as the American Cancer Society), it is often excepted from this law.
Employers can, on the other hand, offer help in quitting through their employee health program. Healthy employees are more productive employees, so offering, but not requiring, this help can benefit the employer.
Trends: E-cigarettes are growing in popularity as a means to quit smoking. Employers without a state or municipality law may decide to allow e-cigarettes in the workplace as a way to increase productivity. However, the health effects of these devices have not been evaluated and the smell may bother other employees. An employer should carefully evaluate the risks and benefits of these devices and then make a policy that states how they will be handled in their workplace.
Author: Ashley Shaw, JD, Legal Editor
Delaware employers with enclosed workplace areas should consider including this model policy statement in their handbook.
The new and updated statements reflect recent legal developments in several states, including Connecticut, Oregon and Rhode Island.
Oregon employers with enclosed workplace areas seeking to inform employees that smoking is prohibited in the workplace and to demonstrate compliance with Oregon law should consider including this model policy statement in their handbook.
Under a new law, effective January 1, 2016, Hawaii will prohibit the use of electronic cigarettes (e-cigarettes) in the workplace.
Hawaii recently passed a law that will add the use of electronic smoking devices, such as electronic cigarettes, to its prohibition against smoking in enclosed or partially enclosed workplaces.
California employers with one or more employees seeking to comply with state law, to encourage and promote good health and to clearly advise employees of the prohibition against smoking in the workplace should consider including this model policy statement in their handbook.
HR guidance on federal and state laws governing employee smoking.