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
Updated policy and guidance to reflect the prohibition of electronic smoking devices in the workplace, effective January 1, 2016.
As a result of various legal developments, Delaware, Hawaii, Oregon and Texas Employee Handbooks have been updated.
The Connecticut Employee Handbook has been updated to address Connecticut's ban of the use of e-cigarettes and other vaping products in numerous places of employment.
Connecticut employers with five or more employees should consider including this model policy statement in their handbook.
Delaware employers with enclosed workplace areas should consider including this model policy statement in their handbook.
HR guidance on federal and state laws governing employee smoking.