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: States are increasingly expanding their definition of smoke free public places to expand applicable businesses, such as bars. The broader the definition of public, the more the employer will need to worry about keeping smoking out of the workplace.
Author: Ashley Shaw, JD, Legal Editor
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