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Nov14

Can an employee be terminated for smelling like smoke?

At my current workplace they are stating that if employees smell like smoke they will be asked to go home and change their clothes. Accured time will be used for time spent away from work to change and if they are sent home for smelling like smoke four or more times they will be terminated. Is this legal? Cigarettes are not illegal, so can an employer do this. Employees are not allowed to smoke during the work shift. This includes breaks and lunch breaks. Is this legal?

Yes, this is legal in most states. A few states like Wisconsin have laws that protect an employees right to engage in lawful behavior outside of work hours, like smoking. But in most other states, this would be perfectly legal. In fact, the employer could just refuse to hire smokers or fire anyone who smoked.

Employers can make the workplace non-smoking. They can require that employees remain on the non-smoking premises during meal breaks and rest breaks, and refrain from smoking. Our best guess is that some employees have been sneaking cigarettes during breaks. Rather than try to catch them, the employer is using the sniff test to weed them out. (Smokers frequently forget that even after one cigarette, to non-smokers their hair and clothes reek of tobacco smoke.) Obviously, if the employee did not smell like smoke at 8 am, and she does at noon, she has been smoking. That is the real issue this technique is addressing, and it sounds like it is effective.

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This entry was posted on Friday, November 14th, 2008 at 8:37 am and is filed under
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34 Responses to “Can an employee be terminated for smelling like smoke?”

  1. Wanda Gledhill Says:

    Is there a way of detecting cigarette smoke on an employee that is impartial and fair?

  2. Caitlin Says:

    Hi Wanda!
    Most non-smokers can smell cigarette smoke on a smoker from several feet away. Is there a practical, objective and scientific way to detect it? Probably not, but the employer can terminate the employee anyway. HTH, and thanks for reading the blogs!~ Caitlin

  3. Antika Says:

    Smoking… as long u do it in the right place (some place, some office, ’cause they are to get ready the place for smoker.
    Some people doesn’t like the smell of cigarette smoke and or the smell of cigarette that to stick on, usually on our clothes.
    Legal or not is depend on personal, but at your office i think is legal. U should realize we all wont the air always decent.

  4. Caitlin Says:

    Hi Anitka! Actually, you might be surprised to learn that several states prohibit smoking in the workplace entirely. In every state, the employer can choose to make the workplace non-smoking, and many do. HTH, and thanks for reading the blogs!~ Caitlin

  5. Mary Collins Says:

    I work in a very small office (6 people) in the state of Calif. One of the employees smokes on the way to work and also outside during the day (Nobody smokes inside) The rest of us can hardly stand the smell when he comes in. Some of us get headaches and one of us has asthma. Because our office is so small, the smell lingers. He is the nicest guy but insists that because he is not smoking inside the office and smoke on his clothes is not considered 2nd hand that it is not a problem. What can we do to get him to understand or can he legally be terminated and on what basis?

  6. Caitlin Says:

    Hi Mary! This is a controversial issue. At this time, the employer is not entitled to tell the worker he must quit smoking entirely. The employee has the right to smoke in his car on the way to work. If other employees are allergic to smoke to the point that it causes them headaches and asthma, they probably have a disability. The employer should make reasonable accommodation for that disability, perhaps by providing the smoker with a private office. However, if this action will result in an undue hardship, the employer is not required to accommodate it.
    The employer can prohibit smoking on company property, and require that the employee not leave company property during paid breaks (in California.) However, it is unrealistic to believe that the coworkers will never encounter a smoker in the workplace. HTH, and thanks for reading the blogs!~ Caitlin

  7. Chris Says:

    What I am hearing is that the employer can require emplyees to stay on the worksite during the day and then apply the sniff test for smokers. I work in Maryland and my employer put in a non smoking policy during shift hours but does not require us to stay on campus. I am also salaried so I can sometimes be required to work 12 hr plus shifts and take call 24 7 without compensation. Can I be required to not smoke during on call weeks becasue of the possibilty that I might get called to the office? Also as i have an 8.5 hour shift and am not getting paid for lunch, can I prohibited from smoking during non paid time off campus?

    Thanks in advance

  8. Caitlin Says:

    Hi Chris! Yes, many employers, especially healthcare providers, are implementing such policies to encourage employees to quit smoking. The employer cannot control what you do off company property, but smelling like smoke can become a performance issue.
    When you are on call, that is a slightly different scenario. Presumably, if you showered, changed into fresh clothes, washed your hair, brushed your teeth and used mouthwash before coming to work (even on call) you would not smell like smoke.
    This is a gray area in HR. Several states have laws that an employee cannot be terminated for lawful behavior outside the workplace (such as smoking.) However, Maryland does not have such a law at this time. HTH, and thanks for reading the blogs!~ Caitlin

  9. Brenda Says:

    What suggestions do you have for an employee who smokes off campus campus during breaks and lunch hour to rid themselves of the smell when they come back? The co-workers complain of the strong smell, and are getting headaches from it. They work as a team, so moving one of them into a separate office is not really an option. Our dress code policy requires employees to be fragrance-free, so I presume this applies to smoke as well. I would like to talk to the employee, but feel I should have some suggestions. Thanks

  10. Caitlin Says:

    Hi Brenda! To be honest, our suggestion is that the employee quit smoking. The employee could brush his teeth, use mouthwash, and Febreze on his clothes. But his hair and skin would still smell like smoke. And, they would still trigger allergies in people who are intolerant to tobacco smoke.
    As an employer, you are justified in disciplining the employee who smokes on his breaks. HTH, and thanks for reading the blogs!~ Caitlin

  11. Christy Says:

    My company is having a Smoking Policy meeting and has asked for all names of smokers in our departments and only the smokers have to attend the Smoking Policy meeting. Is this legal to 1.) ask for names of potential smokers and put together a hard list for HR use, and 2.) only require smokers to attend the meeting?

  12. Caitlin Says:

    Hi Christy! This depends upon which state you are in. A few states prohibit employment discrimination based on smoking, and this comes close. In most states, however, this is legal. HTH,and thanks for reading the blogs!~ Caitlin

  13. timmy Says:

    Hello,
    Finding some very interesting information on this topic – thanks! I am about to confront an employee about the smoke smell and wonder if you could comment on the laws in Iowa. Thanks in advance :-)

  14. Caitlin Says:

    Hi timmy! There is no Iowa law that prevents discrimination against smokers in the workplace. HTH, and thanks for reading the blogs!~ Caitlin

  15. Sharla Shum Says:

    There is obviously a lot to know about this. I think you made some good points in Features also.

  16. Caitlin Says:

    Thanks for reading Sharla!~ Caitlin

  17. quit smoking drug Says:

    Thanks for this information. My sister has been thinking about this subject for a time.

  18. Caitlin Says:

    Hi Quit! Glad we could help. Thanks for reading the blogs!~ Caitlin

  19. Michelle Says:

    What are the laws in florida? I was hired as a smoker and recently they changed their handbook that you cannot smoke on the property and if u smell like smoke they can send us home for the day? Are they allowed to tell me I cannot smoke at home or on my way to work? I work a 12 hour shift.

  20. Caitlin Says:

    Hi Michelle! This is legal in Florida and in most other states. Any employer can forbid smoking on the property, including smoking inside your own car in the parking lot. An employer can discipline or terminate an employee who smells of smoke, which is unpleasant for many customers. You have the right to smoke outside of work, after working hours, and the employer cannot restrict that. Among the many reasons to quit smoking is that it limits your job prospects. There is no law in Florida as in most states, that an employer has to hire a smoker, or permit smoking. HTH, and thanks for reading the blogs!~Caitlin

  21. very aggravated Says:

    Is it legal for the employer to restrict a smoker from smoking, in their car, in the state of Kentucky on a paid 15 minute break?

  22. Caitlin Says:

    Hi VA! Yes, this is legal. The employer is trying to restrict smoking by employees during work hours. They can do so by requiring that employees remain on the premises during breaks, and by banning all smoking on the premises — even in cars in the parking lot. Because they own or lease the property, they have this legal right. HTH, and thanks for reading the blogs!~Caitlin

  23. Sue Says:

    Are there any Idaho laws that prohibit me from requiring an employee to be and smell smoke free while at work?

  24. Caitlin Says:

    Hi Sue! This is lawful in Idaho. As an employer, you can prohibit smoking on your property (even if it is rented) including the parking lot. You do not have to allow employees to leave the premises during lunch or breaks. You can enforce a “smell test” and require that employees do not have an unpleasant tobacco odor. Of course, the easier method would simply be to hire only non-smokers, which is legal in Idaho.

    A few states have laws that protect employees from discrimination based on lawful use of tobacco, but Idaho does not. HTH, and thanks for reading the blogs!~ Caitlin

  25. Tina Says:

    I run a childcare/preschool facility Nebraska and have an employee who smells of smoke. We have had some complaints from other co-workers and parents. We are preparing her performance review a small portion is based on appearance. I would like to speak to this individual about the odor and ask that they refrain from smoking during breaks. We have a non-smoking building but designated areas where individuals can smoke. Can we legally grade her low on her appearance due to the fact that she smells of smoke?

  26. Caitlin Says:

    Hi Tina! This is lawful in Nebraska but there many be better ways to handle the problem. As an employer, you can address any issues you want on the employee evaluation. We agree that considering the odor of smoke an “appearance” issue is a stretch, but it would be lawful. (There are a few states that protect the employees right to smoke while off duty, but Nebraska is not one of them.)

    However, the best practice in HR is that an employee should never learn of a problem for the first time on a performance evaluation. Any issue should be discussed with the employee when it comes up. When a parent or coworker raises the issue of smoke odor with you, it should be addressed with the employee at that time. Example: “Sharla, Mrs. Smith complained that you smell of cigarette smoke. What can we do about that?”

    It is never wise to “gunnysack” or save up complaints about an employees performance until the evaluation. Good management, like any other good relationship, requires constant, open communication.

    It seems very odd that you have designated smoking areas but apparently do not expect the employees to use them. There is no law that you must allow smoking on your business property. You could simply eliminate these designated smoking areas, and let employees know that they are not allowed to smoke on their breaks. (As an employer, you can even forbid smoking inside the employees car in the parking lot. Alternatively, you can simply require that employees remain on the premises during breaks. Both are lawful in Nebraska.)

    This is a sticky wicket, because no amount of Febreeze really removes the odor of smoke from hair and clothes. So, you are basically asking the employee to give up smoking — an addiction that is notoriously difficult to kick. It would be helpful if your organization offers some support to kick the habit, such a participation in a stop-smoking campaign.

    When you discuss this with the employee, she may have alternative suggestions. Ultimately, if it comes down to a choice between her job and cigarettes, many smokers would have no choice but to choose the cigarettes. HTH, and thanks for reading the blogs!~ Caitlin

  27. stephanie cannon Says:

    I work at a hospital in MN and I am a smoker, however, I do not smoke on my breaks, nor do I smoke in the morning while getting ready for work or smoke in my car on the way to work. My boss has told me that she has received complaints from people stating I smell like smoke, which is hard to believe because I take showers at night before bed, my work clothes are washed and fabreezed the night before and I take it very serious to avoid getting complaints. My work performance is not an issue, but I have been sent home 4 times, have had to buy clothes on the premises at our gift shop twice and have had a written warning given to me. Now next week I have to meet with HR because of this problem. What rights do I have? Not only am I being discriminated against but I feel like they are forcing me to change my lifestyle off of work hours. Your response is much appreciated. Thank you, Stephanie

  28. hrlady Says:

    Stephanie,

    Federal law does not regulate smoking in the workplace, some states have laws that control workplace smoking.

    Minnesota has the Clean Indoor Air Act that is intended to protect employees and the public from the health hazards of secondhand smoke. Health care facilities and clinics are virtually smoking prohibited areas.

    Even though you take precautions about your appearance and smelling like smoke, non-smokers can still smell smoke. And even thou Minnesota and/or your employer can not regulate your personal life or restrict you from smoking, it can still be an issue in your workplace. Your hair and skin can still smell of smoke and your employer is justified in disciplining you, up to and including termination. If warnings have been issued to you previously, this is a big concern for your employer which is a health care facility.

    Unfortunately, this may force you to make a decision, your job or smoking.

    Thank you for visiting the blog.

  29. john Says:

    I am the office manager at a gift basket warehouse. We do alot of baskets for big corporate offices during the holidays and throughout the year. My boss does not allow smoking. She does not want the smell to get on the gifts. We usually hire a few temporary workers during the holidays. We have never had an issue before with smokers if they smoked they respected her wishes and did not smoke during work hours even on break. We just hired someone who does smoke. Yes she does go out to her car and our lunch break is off the clock. My boss is not happy because of the smell being carried back into the business. Can she legally tell this employee that she can not smoke while here at the business?

  30. hrlady Says:

    Hi John,

    Some states and some local governments have enacted smoke-free workplaces and regulate smoking in the private workplace and public areas. If your Company is not is a local government or state that has such laws, as an employer you can still regulate smoking. You should create a policy that regulates or bans smoking altogether.
    The U.S. Department of Health and Human Services Centers for Disease Control and Prevention has a guide for making your workplace smoke free. In that guide it gives suggestions for policies. A smoke free environment in company facilities and vehicles can be extended to include the property or grounds of the employer. If you implement this type of policy, your employee who smokes will need to refrain from smoking throughout the workday or leave company grounds to smoke.
    One issue to think about if you decide to implement this type of policy is that you cannot stop the employee from smoking when they are not at work. Smoke may still remain on the employees clothing or items when they come into work. But yes you can implement a non-smoking policy and enforce it on property grounds as well.
    Thank you for reading the Humanresourceblog.com

  31. lb1009 Says:

    I drive from home to home with a group of fellow employees. Can I legally smoke at a gas station during a ten minute break that we all take at the same time?

  32. hrlady Says:

    Hi IB1009,
    Your question is not related to work, but the drive into and from work. Certainly it is not illegal to smoke, but you should always take others who do not smoke into consideration. If the smell of smoke on you after you return to the car bothers someone than you should not smoke. I suggest you speak to the people you carpool with for their approval.
    Thank you for reading the Humanresourceblog.com

  33. Kathleen Says:

    I live in Washington state and have my own business. In the 21 years of business I have just encountered my first smoker. He goes out on breaks and smokes in his car and comes back to an open office where he works with 3 other employees. Everyone is bothered by the smell he brings back with him. Does Washington allow me to prohibit him from smoking during business hours or from coming in smelling like smoke? Our current policy reads that smoking is strictly prohibited on the premises. This would not prevent him however from driving around the block in his car and still coming back smelling like smoke. What options do I have?

  34. hrlady Says:

    Hi Kathleen,
    Dealing with smokers in the workplace is an ongoing issue for both small businesses and large corporations. Smoking is prohibited in enclosed work places in Washington and there is no current law protecting smokers from discrimination in the workplace. Thus, an employer is able to ban smoking on company premises and during business hours as well as discipline an employee for smelling like smoke while at work. It’s advisable to update your policy and discuss your concerns with the employee. Be careful how you address the matter; focus on the facts regarding the impact the odor is having on coworkers and the productivity. Discuss possible solutions. The employee may be willing to change his routine or take measures to offset the odor. If such remedies don’t work, assuming the employment is at will, termination may be warranted. HTH!

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