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Texas Smoking Breaks

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How many smoking breaks is an employer in Texas legally required to give an employee, per day?

Smokers aren’t entitled to any smoking breaks. No law, either federal or state, mandates that a smoker in the state of Texas get a single smoking break. Employers may set any policy on the matter that they prefer. They may eliminate smoking breaks entirely.

The question arises as laws arise making smoking indoors, including the workplace, illegal. That means smoking time is time away from the job – unproductive time, in short. It has become an issue.

Some companies, of course, have policies that allow for a lunch break of a half-hour or more, and two coffee breaks of 15 minutes each, in the course of an 8-hour working shift. Smokers may use these times to indulge in their addiction if they wish. Polices may or may not be in writing, and smokers would be well advised to follow those policies.

Some employers limit smoking breaks. They ask that smokers take no more than 5 or 10 minutes and limit them to 3 to 5 times a day. That’s not unreasonable, considering that it amounts to 15 to 50 minutes a day of unproductive time. Meanwhile, non-smokers are putting in productive time.

And some union pacts have gotten break guidelines into contracts.

What may not be well known is that in Texas and other states no law, whether federal or state, mandates that a worker be given any break time during the work day, even for lunch. As long as the worker is over 18 years old, an employer could make that employee work for 12 hours or more without a break of any kind.

The Fair Labor Standards Act of 1938 requires employers to pay workers for any breaks that are less than 20 minutes long. A smoking break of 10 minutes, therefore, is paid, unproductive work. An employer could in theory require the smoking break to be 20 minutes long and demand that workers clock out during that period. But the same would have to hold for non-smokers. It would be a serious erosion of productivity. JH