Smoke Breaks: What Does The Law Say?

The Fair Labor Standards Act (FLSA) does not require employers to provide smoke breaks. However, if an employer does offer short breaks, they must be counted as work hours. This means that if an employee takes a smoke break of between 5 and 20 minutes, this must be included in the total time they have worked. If an employee takes an unauthorized break to smoke, this does not need to be paid or counted towards their total work time. While smoke breaks are not required by law, some jurisdictions have laws or regulations that require employers to provide reasonable break periods for employees.

The Fair Labor Standards Act (FLSA)

Rest breaks usually last for 5-20 minutes and must be included in the total time an employee works if offered. Meal breaks, on the other hand, are typically 30 minutes or longer, and employees do not need to be paid for this time. However, if an employee performs any kind of work during their meal break, this time must be paid.

The FLSA establishes a minimum wage, overtime pay, record-keeping, and youth employment standards for employees in the private sector and in federal, state, and local governments. Covered non-exempt workers are entitled to a minimum wage of $7.25 per hour, effective July 24, 2009. Overtime pay at a rate of one and a half times the regular rate of pay is required for hours worked over 40 per workweek. The FLSA also prohibits the employment of minors in "oppressive child labor".

While the FLSA does not require employers to provide rest and meal breaks, certain states might have such requirements. Additionally, the FLSA mandates that employers provide nursing mothers with breaks to express breast milk for one year after the child's birth, as well as a private space that is not a bathroom.

State laws

While federal law does not require employers to provide smoke breaks, some state laws may require employers to provide reasonable break periods for employees.

• Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Washington, West Virginia, and Wisconsin require employers to adopt policies barring or significantly restricting smoking in the workplace.
• Some states, such as Kentucky, Mississippi, North Carolina, South Carolina, and Wyoming, do not have tobacco-free restrictions in public places.
• States including Colorado, Connecticut, District of Columbia, Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, West Virginia, Wisconsin, and Wyoming prohibit employers from discriminating against or controlling employees' tobacco use outside of the workplace.
• Some states require a paid 10-minute rest period for each 4-hour work period.
• Some states require a 30-minute break after 5 consecutive work hours unless the employee is able to eat while working.
• Some states require a 20-minute break for employees working 6 or more hours.
• Some states require a 30-minute break for employees working 6 or more consecutive hours.
• Some states require a reasonable off-duty period (typically 30 minutes) after 3 hours of work and before 5 hours of work.
• Some states require a 30-minute lunch break (off-premises) per 8-hour shift.
• Some states require a 30-minute break after 6 consecutive hours.
• Some states require a reasonable opportunity during work to eat and use toilet facilities.
• Some states require a 30-minute break for employees who work more than 5 consecutive hours, given after the employee's 2nd hour and before their 5th hour at work.

Employee productivity

The impact of smoke breaks on productivity is twofold. Firstly, there is the direct loss of productive hours as employees step away from their tasks. Secondly, their absence can cause disruptions to workflow as colleagues may need to cover for them, leading to inefficiencies throughout the organization. This disruption to workflow can lead to a loss of focus and interruptions to meetings and other work activities, hindering the smooth operation of the business.

According to studies, smokers in the workplace are absent from work approximately 50% more than non-smokers due to smoking-related health issues. This increased absenteeism, coupled with the time spent on smoke breaks, further compounds the impact on productivity.

To address these concerns, employers can implement various strategies. One approach is to establish clear smoke break policies that outline the number of allowed breaks and their duration. Employers can also include smoke breaks in the overall break schedule to minimize disruption during critical work periods. Additionally, providing designated smoking areas away from workspaces can help maintain a safe and healthy environment for all employees.

Another strategy is to promote health and wellness initiatives that encourage employees to consider alternatives to smoking, such as short walks, stretching exercises, or deep breathing techniques. Offering resources and support for smoking cessation can also help improve employee health and productivity while reducing healthcare costs associated with smoking-related illnesses.

By implementing these measures, employers can strike a balance between accommodating the needs of smoking employees and maintaining overall productivity.

Health implications

Smoking is the number one cause of preventable disease and death worldwide. In the United States alone, more than 480,000 deaths are attributed to cigarette smoking, with smoking-related costs amounting to at least $289 billion each year. This includes $151 billion in lost productivity and $130 billion in direct healthcare expenditures.

Smoking harms nearly every organ in the body and is a leading cause of lung cancer and COPD (chronic obstructive pulmonary disease). It is also a cause of coronary heart disease, stroke, and a host of other cancers and diseases.

Among adults who have ever smoked daily, 78% started smoking before the age of 18, and 94% had started by the age of 21. People who smoke tend to die about 10 years earlier than non-smokers.

Cigarette smoke contains over 7,000 chemicals, at least 69 of which are known to cause cancer. Smoking is directly responsible for approximately 90% of lung cancer deaths and about 80% of deaths caused by COPD. It is also the most significant risk factor for developing COPD. Smoking increases the risk of lung cancer by a factor of 5 to 10, with heavy smokers being at an even greater risk.

Smoking is also associated with cancers of the mouth, pharynx, larynx, oesophagus, stomach, pancreas, cervix, kidney, and bladder, as well as acute myeloid leukaemia. It is worth noting that cigarette smoking is not the only form of tobacco use associated with cancers. Smokeless tobacco has been linked to cancer of the pharynx, oesophagus, stomach, and lung, as well as colorectal cancer.

In addition to cancer, smoking causes lung diseases such as chronic bronchitis and emphysema, and it exacerbates asthma symptoms in both adults and children. Smoking also substantially increases the risk of heart disease, including stroke, heart attack, vascular disease, and aneurysm. Cardiovascular disease is responsible for 40% of all smoking-related deaths.

Smoking causes coronary heart disease, the leading cause of death in the United States. It increases blood pressure, lowers exercise capacity, makes blood more likely to clot, and reduces HDL cholesterol (the "good" cholesterol). All of these factors contribute to an increased risk of heart attacks and strokes.

Smoking also has negative effects on reproductive health and sexual function in both men and women. It can cause fertility issues, complications during pregnancy, and an increased risk of miscarriage, premature birth, and birth defects. Smoking during pregnancy exposes the fetus to nicotine and other chemicals known to cause genetic defects.

Additionally, smoking can lead to gum disease and tooth loss, a weakened immune system, type 2 diabetes, a decreased sense of smell and taste, premature skin ageing, bad breath, stained teeth, lower bone density, and an increased risk of rheumatoid arthritis, cataracts, and age-related macular degeneration.

Legal and ethical obligations

In the United States, the Fair Labor Standards Act (FLSA) defines rest and meal breaks. According to the Department of Labor (DOL), the FLSA does not require employers to provide smoke breaks or other short breaks for snacks, coffee, etc. However, if short breaks (5-20 minutes) are offered, they must be included as compensable work hours.

Some states have laws that require employers to provide breaks, and these vary depending on the industry and hours worked. For example, some states mandate a 30-minute meal break for work shifts longer than 5 hours. It is important to refer to the specific laws and regulations of your state.

Employers have a legal and ethical duty to provide a safe and healthy work environment for all employees. This could mean implementing a smoke-free workplace to protect non-smokers from second-hand smoke. Additionally, the Affordable Care Act (ACA) allows health insurers to charge smokers higher premiums, which can influence employees to quit smoking.

When creating a workplace smoking policy, it is essential to recognize the rights of both smokers and non-smokers. Employers can allow smoking only during designated breaks and lunch periods, schedule breaks to separate smokers from non-smokers, and restrict smoking to specific outdoor areas away from main passageways.

To promote fairness and inclusivity, some workplaces are shifting towards more flexible and inclusive break policies that accommodate the diverse needs of all employees, regardless of smoking habits. These policies can offer equitable break options, such as allowing all employees to take short breaks as needed within reason.

It is also important to note that employees who smoke may be protected by law in some states. While most states have laws requiring employers to adopt a smoking policy, some prohibit discrimination against job applicants or employees who use tobacco products outside of work. These states include Colorado, Connecticut, Illinois, Indiana, Kentucky, Louisiana, Maine, Minnesota, Mississippi, and more.

In summary, while there is no federal requirement to provide smoke breaks, employers should be aware of state-specific laws and regulations regarding breaks and smoking policies. They must also balance the needs of smokers and non-smokers to ensure a safe, healthy, and fair work environment for all.

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