Human Resource Blog

Employee smoking

As an employer, legally do I have to give my employees a smoke break?

No. There is no law in any state that an employer must give smokers additional breaks, over and above the breaks that are given to other workers. Nor is there a law in any state that requires an employer to give any worker a break specifically for the purpose of smoking. There is also no federal law that requires this.

In fact, as an employer you can make the workplace 100% smoke-free, and ban smoking anywhere on the property — even if you rent but do not own the property. Hospitals have been banning smoking since the 1980s. They do so not because they use oxygen in treatment, but simply because they know first-hand the horrors of smoke-related illnesses like lung cancer.

Under federal law, if you do permit an employee to take a break of less than 20 minutes, you must pay the worker for that time. So you must pay workers on smoke breaks. If the break is unauthorized, you can discipline or terminate the employee for taking it, but you must still pay the employee for that time.

You probably should ban smoking at work. Studies show that a smoker takes twice as many breaks as a non-smoker, and is only 70% as productive as a non-smoker — so all those short breaks add up. In addition, on average smokers take twice as many sick days as non-smokers. And over a lifetime, their helathcare costs are much higher.

A handful of states require that employers give breaks to all workers. But none of those states require that you permit smoking during breaks.

Employee smoking