Overview: It is well documented that smoking is a health hazard. Furthermore, secondhand 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. Often, cities and counties specifically prohibit smoking in the workplace where their state does not.
Very rarely will an employer be allowed to let employees smoke freely while intermingling with their nonsmoking co-workers. If there is not a law dictating this, the employer could still be held liable in a lawsuit for any secondhand smoke problems developed by the nonsmoker forced to work in the smoking environment. Therefore, it is very important that employers create, and strictly enforce, smoking policies in the workplace.
However, an employer should be very careful about punishing or discriminating against an employee for smoking outside of work. Many states have laws that protect legal off-duty activities, such as tobacco use. Unless there is a legitimate business goal for not hiring or for firing smokers, such as the employer's purpose is to prevent smoking or to prevent cancer (e.g., the American Cancer Society), the employer should generally ignore employees' off-duty smoking habits.
Employers can, on the other hand, offer help in quitting, such as helping pay for nicotine patches or directing employees to a smoker's hotline or counseling programs.
Trends: E-cigarettes have become a big industry. While many view e-cigarettes as a means to quit smoking, others argue that e-cigarettes are not a healthy alternative to smoking. Many cities and states have even amended their smoking laws to cover e-cigarettes. Employers should review their workplace smoking policies to ensure they comply with any applicable laws and/or reflect its stance on e-cigarettes.
Author: Melissa Gonzalez Boyce, JD, Legal Editor
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Updated to reflect Nevada's prohibition of the use of e-cigarettes in workplaces, effective January 1, 2020.
Updated to reflect amendments to the Cannabis Regulation and Tax Act relating to an employer's liability based on its workplace drug policy, effective December 4, 2019.
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Updated to reflect amendments to medical marijuana law, effective July 2, 2019.
HR guidance on federal and state laws governing employee smoking.