California Workers' Smoking Rights: Smoke Breaks Law Explained

In California, employees are guaranteed rest breaks and meal breaks throughout the workday, but no law provides additional breaks specifically for smoking. While on break, employees are free to do whatever they choose, including going outside to smoke, but employers are not required to accommodate an employee's smoking habit outside of these designated break times.

California law doesn't provide for extra breaks for smokers

California law does not provide for extra breaks for smokers. While smokers are protected under California law and cannot be discriminated against or wrongfully terminated for engaging in lawful activity, they are not entitled to any additional breaks specifically for smoking.

In California, employers are required to permit non-exempt employees to take meal and rest breaks throughout the workday. Employees are guaranteed at least one paid 10-minute rest break for every four hours of work. They are also guaranteed at least one unpaid 30-minute meal break for every five hours of work. However, these breaks are not specifically intended for smoking and are provided to all employees, regardless of their smoking status.

If an employee needs a break to smoke during the workday, they can utilise their allotted rest break or meal break to do so. While California employees are guaranteed rest and meal breaks, employers are not required to accommodate an employee's smoking habit outside of these designated breaks. If an employer refuses to allow an employee to take additional smoke breaks, the employee does not have a wage and hour claim.

It is important to note that employers in California cannot legally prohibit smoking in non-work areas that are safe and hazard-free. Employers with five or fewer employees may permit smoking in any designated area if all employees present agree and no minors are present. However, employers are well within their rights to prohibit smoking within enclosed workspaces and inside the building.

Employers can't stop employees from smoking outside during their meal or rest breaks

California law does not provide for additional breaks for smokers. However, employers cannot stop employees from smoking outside during their meal or rest breaks. While California law guarantees rest and meal breaks, it does not specify any extra breaks for smokers. Employees can choose to do whatever they want during these breaks, including going outside to smoke.

Employers can require employees to stay "on-call" or "on-duty" during meal or rest breaks in certain circumstances, such as when the nature of the job prevents an employee from being relieved of all duties during the break. For example, a lone late-night security guard may be required to remain on-duty during their break. However, outside of these limited exceptions, employees generally cannot be forced to work during their breaks.

While employers are well within their rights to prohibit smoking within the building, they cannot fire workers for legally smoking cigarettes in designated areas or outside the workplace. California employers cannot legally terminate an employee for engaging in lawful activities outside of work hours. This means that employees cannot be discriminated against or wrongfully terminated for engaging in lawful smoking activities outside of work hours and away from the employer's premises.

It is important to note that California law prohibits smoking in enclosed workplaces. Smoking may only be permitted in designated non-work areas that are safe and hazard-free. Employers with five or fewer employees may permit smoking in any designated area if all employees present agree and no minors are present. Additionally, employers must take reasonable steps to prevent smoking in all enclosed workplace areas and may designate an entire site as non-smoking.

Employers can't fire workers for smoking in designated areas or outside the workplace

In California, employers are prohibited from taking action against employees for any lawful activities they choose to undertake in their own time, away from the workplace. This means that employers cannot fire workers for smoking in designated areas or outside the workplace.

California law states that smoking is only permitted in non-work spaces that are safe and hazard-free. Employers with five or fewer employees may permit smoking in any designated area if all employees present agree and no minors are present. In addition, employers must take reasonable steps to prevent smoking in all enclosed workplace areas and may designate an entire site as non-smoking.

While there is no federal law requiring employers to provide smoke-free workplaces, local city or county laws can regulate smoking laws in the workplace. For example, the Occupational Safety and Health Act (OSH Act) may require a smoke-free workplace where industrial contaminants may mix with smoke and create poor air quality that violates workplace safety standards.

California employers have a legal duty to provide a safe and healthy workplace under Cal/OSHA regulations. This includes assessing hazards from wildfire smoke and taking measures to reduce employee exposure, such as providing N-95 respirators and encouraging their use. It is illegal for employers to retaliate against workers who refuse to work in unsafe conditions, including in evacuation zones.

Employers must take reasonable steps to prevent smoking in all enclosed workplace areas

In California, employers are required to take reasonable steps to prevent smoking in all enclosed workplace areas. This means that smoking can only take place in designated non-work areas that are safe, hazard-free, and well-ventilated. These designated smoking areas must not be enclosed and must be separate from break rooms for non-smokers.

Employers must also take steps to prevent non-employees from smoking in the workplace. This includes posting clear and prominent "No Smoking" signs at entrances and requesting that non-employees refrain from smoking in prohibited areas. However, employers are not required to physically remove smoking non-employees from the workplace.

In addition, employers with five or fewer employees may permit smoking in any designated area, provided that all employees present agree and no minors are present in the smoking area.

To ensure compliance with these regulations, local law enforcement agencies, including local health departments, will enforce the smoking restrictions. If an employer is found guilty of three violations of the smoking restrictions within a year, Cal/OSHA will be required to respond to complaints and may issue fines of up to $7,000 for general or serious violations and up to $70,000 for willful serious violations.

By following these guidelines, employers in California can create a safe and compliant workplace for both smokers and non-smokers.

Employers with five or fewer employees can allow smoking in any designated area if all employees agree

In California, smoking is prohibited in enclosed workspaces, as this would affect non-smokers. However, employers with five or fewer employees can allow smoking in any designated area, as long as all employees present agree and there are no minors in the smoking area. This exception gives small businesses the flexibility to make their own decisions regarding smoking policies.

This exception allows for smoking in designated areas within the workplace, which can be especially useful for small businesses that may not have the space for separate smoking and non-smoking areas. By requiring the agreement of all employees, the law ensures that the decision is made collectively and that everyone's preferences are considered. It is important to note that the designated smoking area must be a non-work area, and no employee can be required to enter it as part of their job.

The law also specifies that the designated smoking area must be safe and hazard-free. This means that employers must take steps to ensure that the area is well-ventilated and that second-hand smoke does not create a health hazard for employees. Additionally, employers must post clear and prominent "No Smoking" signs at entrances to the building and take reasonable steps to prevent non-employees from smoking in prohibited areas.

While California law does not provide for additional breaks specifically for smoking, employees can utilise their paid rest breaks or unpaid meal breaks to smoke if they need to. These breaks are guaranteed by law and cannot be waived, providing employees with the opportunity to engage in any personal activities, including smoking, during their workday.

It is important to note that California law also protects smokers from discrimination or wrongful termination. Employers cannot fire or discriminate against employees for engaging in lawful activities outside of the workplace, including smoking. This protection ensures that smokers are treated fairly and are not penalised for their smoking habit.

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