At the federal level, there are no laws that regulate smoking in the workplace. However, many states have enacted laws regulating smoking. Additionally, many cities and counties have ordinances in place that completely ban smoking in the workplace. There are so many laws concerning smoking in the workplace due to the fact that many federal and independent studies have illustrated the detrimental effects of smoking, as well as second-hand smoke.
The Environmental Protection Agency (“EPA”) has estimated that second-hand smoke is the cause of approximately 3,000 lung cancer deaths, as well as 37,000 heart disease deaths per year. Additionally, if smoking is not regulated in the workplace, it could lead to higher costs of:
- Healthcare insurance;
- Unemployment insurance; and
- Workers’ compensation insurance for employees who smoke.
It is important to note that nearly half of the states have laws in place making it illegal for an employer to refuse to hire an employee, or fire an employee, simply because they smoke during their non-working hours.
What State Laws Are In Place That Regulate Smoking In The Workplace?
There are some states that have smoking laws specifically targeting the workplace. Such states include, but may not be limited to:
- California;
- New Jersey;
- Connecticut;
- Rhode Island; and
- Vermont.
What this means is that nonsmoking employees are protected under these laws no matter where they work. Many other states have instituted smoking laws which restrict smoking in public places, as well as in some private places. This generally means that there is no smoking allowed in the workplace, except in designated areas.
Some examples of common exceptions to these types of no-smoking laws include, but may not be limited to:
- Places in which private social functions are held;
- Offices which are occupied exclusively by smokers;
- Prison inmates and people who are being detained at other kinds of correctional or care institutions; and
- Employees who can prove that it would not be reasonably possible for them to comply with the legal restrictions
It is important to note that this does not necessarily mean that smoking is allowed. Rather, it simply means that the rules of the institution will govern if and where people can smoke, as opposed to state laws governing if and where people can legally smoke.
An example of workplace laws that regulate smoking include designating specific outdoor spaces where smoking is permitted. It is important to note that these outdoor spaces are often not within a certain distance of the workplace entrance or exit. Other examples of laws concerning smoking in the workplace include:
- Prohibiting smoking inside the workplace or at the workplace that is open to the public;
- Prohibiting smoking in only designated areas of the workplace, or at a designated spot outdoors; and/or
- Prohibiting smoking entirely at specific types of workplaces such as a daycare, hospital, or restaurant.
It is also important to note that in addition to employer or state laws, many local cities and counties also have ordinances that prohibit smoking in certain areas. In order to determine whether your local city or county has bans or ordinances considering smoking, you may contact your local governmental official and make a public records request for the ordinances concerning smoking. Typically, there are also numerous signs posted around the city and county that inform the citizens as to what the ordinances on smoking are, and where to locate the specific ordinance in the local rules.
Once again, employers are free to completely ban smoking in the workplace, even if there are no state laws that prohibit smoking. This means that there is no law that protects an employee from smoking while on the job. However, an employer has less rights when it comes to regulating an employee off the clock. When an employee is off the clock, and there is action taken by an employer against them, that is when the laws come in that provide protection to smokers. As noted above, specific states have prohibited discrimination against employees based simply on the fact that they smoke. In other states, there are laws that protect employees from “lawful conduct” while not on the clock and away from work.
Many states and case law have stated that smoking is lawful conduct for purposes of those protections for employees. Thus, employers may not terminate an employee, or take any other negative action against an employee for smoking during non-working hours, while away from the workplace.
It is important to note that workplace provided health insurance may require smokers to pay higher health insurance premiums than nonsmoker employees. This is not considered discrimination against smokers. Employers may also provide financial incentives or wellness programs for an employee to participate in as a means for them to quit smoking. Providing programs or financial incentives to quit smoking has also not been considered as discrimination.
What Are the State Laws on E-Cigarettes?
Recently, numerous individuals have switched from traditional cigarettes or nicotine products, to e-cigarettes. E-cigarettes may also be known as: “e-cigs,” “vape pens,” “vapes,” or “electronic nicotine delivery system” (“ENDS”). Numerous states have also provided definitions of e-cigarettes. For example, in Texas an e-cigarette is defined in the Texas Health and Safety Code as:
“(i) an electronic cigarette or any other device that simulates smoking by using a mechanical heating element, battery, or electronic circuit to deliver nicotine or other substances to the individual inhaling from the device; or (ii) a consumable liquid solution or other material aerosolized or vaporized during the use of an electronic cigarette or other device described [above, including a product sold as] an e-cigarette, e-cigar, or e-pipe or under another product name or description [and including any] component, part, or accessory for the device [whether or not] sold separately. . . .”
As can be seen by the above definition, any device that simulates smoking using a heating element, which also delivers nicotine or other substances from inhalation, will be considered an e-cigarette.
The laws and ordinances concerning e-cigarettes are similar to traditional cigarettes. For example, numerous states have passed laws that incorporate e-cigarettes and other vaping products into the already existing laws on smoking.
Laws concerning workplace smoking of e-cigarettes include, but are not limited to:
- Prohibiting use of e-cigarettes in designated areas such as schools, elevators, theaters, libraries, museums, hospitals, buses, planes, and trains. It is important to check with your employer if there are designated smoking locations if you work at one of the above locations;
- Prohibiting the use of vapor products inside court or criminal justice facilities, often with designated outdoor areas for consumption; and/or
- Prohibiting the use of e-cigarettes at daycare or other childcare homes and centers, including locations where a child may be present, such as a playground, vehicle, or during field trips, etc. It is important to note that foster parents are also often prohibited from using e-cigarettes inside, or in a vehicle while transporting a child.
Do I Need an Attorney for Workplace Smoking Laws?
If you believe that you have been discriminated against, or if you have been terminated based solely on the fact that you are a smoker, you may wish to consult with a local and experienced contract attorney. An attorney will be able to explain the state and local laws concerning smoking, as well as advise you of your legal rights as an employee.
Additionally, an attorney will also be able to file a claim against your employer for workplace discrimination or breach of contract, if applicable. Finally, an attorney will also be able to represent you in court, as needed.
