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State Laws Regulate Smoking in the Majority of Workplaces

Filed under Managing the Workplace. Fact checked on May 25, 2012.

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Most states have laws that limit or prohibit smoking in the workplace. Even in the absence of law, employers often institute a policy or rule about smoking that prohibits smoking in the workplace or limits it to certain areas.

Smoking in the workplace is addressed by state laws in the majority of states. State laws often restrict or prohibit smoking in places of employment. In addition, many employers have a policy or rule about smoking that prohibits smoking in the workplace or limits it to certain designated areas.

Currently, even where permitted, employers rarely allow unrestricted smoking in the workplace, and with good reason:

  • Laws in most states require a written policy or certain practice to be followed.
  • The majority of employees seem to be in favor of smoking restrictions.
  • Smoking is a health hazard. Smoking-related illnesses endanger the smoker directly and the nonsmoker indirectly. Some employees have allergies to smoke and their needs must be accommodated, if the Americans With Disabilities Act (ADA) or similar state laws apply to you.
  • Employees are suing. One of the rationales is simply that the right of an individual to risk his or her own health does not include the right to jeopardize the health of those who must remain in the area of the smoker in order to perform their jobs properly.
  • Nonsmoking employees are suing not only to restrict smoking, but are suing for disability, workers' compensation, and unemployment compensation.
  • Employees who smoke account for higher insurance premiums, increased medical payments, and higher absenteeism rates.

To properly handle the issue of smoking in the workplace, take the following steps:

  1. Determine if your state's laws require you to have a smoking policy.
  2. Determine if you can refuse to hire or retain employees who smoke.
  3. If you are required to or want to have a policy limiting smoking in the workplace, determine if you will:
    • Allow smoking areas (and decide where the areas will be).
    • Limit whether, when, and where customers can smoke.
  4. Formulate your policy, and communicate or post it if required.

State Laws on Smoking in the Workplace

Most states have laws that address smoking in the workplace. Consult our state map for information regarding workplace smoking laws in your state and which employers are covered by them.

If you are permitted to do so by state law, you may want to provide a designated smoking area to those employees who smoke.

Tip

If smoking is permitted in a designated area, be sure that employees know how often they can go to the smoking area for a smoke break. Some employers have problems because employees who smoke take frequent breaks, apart from regular breaks, to smoke. That can cause friction between smoking and nonsmoking employees and can even present some problems in terms of the federal wage and hour Fair Labor Standards Act if employees are paid by the hour.

The Environmental Protection Agency recommends that employers either restrict smoking in buildings to separately ventilated areas directly exhausted to the outside or ban smoking entirely in order to protect nonsmokers from environmental tobacco smoke.

In states where smoking in designated areas in the workplace is permitted, it may be required that you clearly identify the nonsmoking and smoking areas of a workplace with signs. In some states, the sign must include the internationally recognized no smoking symbol (a red circle containing a depiction of a lit cigarette with a line drawn diagonally through the entire circle).

In addition, some states require specific wording for smoking or no smoking and, in some cases, a fine for violating the nonsmoking zone. In addition, some states require you to post their smoking policies in conspicuous areas around the workplace.

Limiting Employees' Off-Duty Smoking

If you believe that smoking will result in more absenteeism or in higher benefit costs, you may not want to hire or keep employees who smoke.

A growing number of states, however, have enacted smoker's rights laws that prohibit discrimination against employees and job applicants who smoke away from their employer's premises during nonwork hours. The laws usually take the form of rules that prohibit discrimination against employees for use of legal substances on their own time — including tobacco products — or for engaging in lawful activities.

Even though you may end up paying higher health insurance or life insurance premiums, you cannot discriminate against these employees in states where this type of discrimination is prevented. One action you can take, however, is to encourage employees who smoke to quit by offering a bonus to those who quit, or by paying for stop-smoking programs.

Be sure to consider if your state's anti-discrimination laws protect employees from discrimination based on lawful activities outside of work.

Developing a Smoking Policy

If your state law requires you to have a written policy on smoking, you'll need to create one. Because smoking can be a controversial subject, give your policy development the serious attention it deserves.

Tools to Use

Our Business Tools include a smoking policy that you can customize for use and post in your business.

The following are a few suggestions for you to consider when you draft your policy:

  • Research state law and local ordinances.
  • Tailor your policy to comply with local law and with the needs of the particular work site.
  • Involve employees. Take input from smokers and nonsmokers.
  • If you change your policy or implement a new policy, give sufficient notice beforehand. It's a major change of habit — allow employees time to adjust.
  • Properly communicate the policy.
Tip

Smoking in the workplace rules can allow you to restrict your customers from smoking. In some states, businesses such as restaurants must have nonsmoking areas or must prohibit smoking altogether. If you create your policy so that smoking is prohibited in certain areas on your premises or is completely banned, post your policy so that any visitors to your premises will see it and can comply.

Properly posting your smoking policy is important. There are several places where you can post your written policy, but make sure they comply with your state's requirements:

  • company bulletin board
  • employee changing room, restroom, or locker room
  • employee cafeteria, break, or lunch room
  • other areas where the employees may easily see the policy, such as a place where employees punch their time cards or record their hours

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