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
As mandated by the Oregon Department of Human Services, Oregon Health Authority, every employer covered by Oregon's Smokefree Workplace Law must post the Oregon No Smoking Within 10 Feet poster.
As mandated by the Pennsylvania Department of Health, every employer subject to the Clean Indoor Air Act of 2008 must post the Pennsylvania No Smoking Sign poster.
A quick reference chart has been added to reflect the states with laws protecting employees and job applicants who smoke from employment discrimination.
While more and more state laws are restricting smoking in public places, employers should be aware that 29 states plus the District of Columbia have laws on the books that ban employment discrimination for off-duty conduct, including smoking.
The Massachusetts Smoke Free Workplace poster, mandated by the Massachusetts Department of Public Health, is required by all smoke-free public places.
The Illinois Smoke Free Illinois Act poster, mandated by the Illinois Department of Public Health, must be clearly and conspicuously posted in each public place covered by the act.
The Kansas Indoor Clean Air Act poster, mandated by the Kansas Department of Health and Environment, is required by all smoke-free public places where smoking is prohibited.
The ban extends to virtually all public places, both open and enclosed, including bars, all worksites, truck stops, hotels/motels, retail tobacco stores, gambling and gaming facilities, child and adult day care facilities.
In-depth review of the spectrum of Illinois employment law requirements HR must follow in respect to navigating employee health concerns in the office.
HR guidance on federal and state laws governing employee smoking.