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Smoking Tobacco in the Workplace

Because federal law does not regulate smoking in the workplace, most states have laws that control workplace smoking. Administrative regulations and local ordinances may also apply. The intent behind these laws is to protect the health of workers. Recent studies have indicated that the exposure of nonsmokers to tobacco smoke can cause serious health conditions like lung cancer and heart disease.

Protection of Nonsmokers in the Workplace

Most states do have regulations that protect workers from tobacco smoke. Some laws directly regulate smoking in the workplace. In Florida, for example, the law prohibits smoking in all enclosed indoor workplaces (except private residences and bars). A few states limit or ban smoking in not just workplaces but in public places as well. Other state laws, however, only protect nonsmoking workers through smoking laws that apply to public places or private places.

If a law limits smoking at work, it will often allow smoking in a designated area. In California, workplaces with five or more employees must prohibit smoking in enclosed work areas, but may provide a smoking breakroom as long as nonsmokers have enough breakrooms.

Even when state laws regulate workplace smoking, exceptions may apply in:

  • Workplaces that typically host private functions
  • Private offices where only smokers work
  • Workplaces where the employer can establish that compliance is financially and physically unreasonable

Protection of Nonsmokers under the Americans With Disabilities Act

Workers that have a serious medical condition that is affected or caused by tobacco smoke may be protected under the Americans With Disabilities Act (ADA). The ADA prohibits employers, with at least 15 employees, from discriminating against workers with physical or mental disabilities. Under the Act, an employee may be able to assert a successful claim if established that they have a physical impairment that substantially limits one or more major life activity. In a circumstance involving tobacco smoke, the worker must show that smoking in the workplace has severely limited the major life activity of breathing.

A worker defined as disabled under the ADA can request the employer provide a reasonable accommodation. In a circumstance involving tobacco smoke, the worker may request a smoke-free workplace. If the employer can establish that prohibiting smoking will cause an "undue hardship," the employer may not have to accommodate the nonsmoker.

Protection of Smokers in the Workplace

Because the law does not protect the right to smoke in the workplace, an employer may ban workplace smoking. However, many state laws do protect smokers from discrimination in the workplace. In some states, laws prohibit employers from banning employees from smoking outside of the workplace. For instance, in Nevada, an employer may not restrict an applicant or an employee from smoking tobacco during nonworking hours as a condition of employment. Other states bar employers from conditioning employment on whether a worker or an applicant smokes. In North Dakota, an employer may not discriminate, refuse to hire, or discharge a worker because the worker smokes during nonworking hours, unless it conflicts with the interests of the business.

Next Steps
Contact a qualified workplace safety attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

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