Smoke Breaks: Are They A Legal Right?

While there is no federal law requiring employers to provide breaks to their employees, many companies allow their employees to take breaks during the workday. However, the question often arises as to whether employees who smoke should be given extra breaks. According to the Fair Labor Standards Act (FLSA), if an employer decides to permit short breaks, then the time is considered compensable hours worked. This includes breaks for any purpose, such as smoking, that are shorter than 20 minutes. While employers are not required to provide smoke breaks, they can choose to implement smoking policies that balance the needs of both smokers and non-smokers.

Employers are not required to provide smoke breaks

The Fair Labor Standards Act (FLSA) does not require that employees receive any breaks, whether paid or unpaid, with the exception of lactation breaks for new mothers. However, if an employer chooses to offer breaks, they must be treated as compensable hours worked under the FLSA. This includes short smoking breaks of up to 15 minutes, which have been deemed "hours worked" by the US Department of Labor (DOL).

While some states have laws requiring employers to adopt a smoking policy, this does not necessarily mean providing dedicated smoke breaks. Instead, employers can implement measures such as restricting smoking to specific areas or break times to accommodate both smokers and non-smokers. Ultimately, the decision to allow smoke breaks or not lies with the employer, and they are not legally obligated to make exceptions to their standard break policy.

It's worth noting that nicotine addiction may be considered a disability under the Americans with Disabilities Act (ADA) in certain circumstances. However, this does not mean that employers are required to provide extra breaks for smoking. There are other reasonable accommodations that can be offered, such as nicotine patches, to assist employees struggling with nicotine addiction.

Smoking is not a disability under the Americans with Disabilities Act (ADA)

While the Americans with Disabilities Act (ADA) is a comprehensive civil rights law that prohibits discrimination against people with disabilities, it is important to note that smoking is not considered a disability under this Act. This means that employers are not legally required to provide accommodations for smokers, such as extra breaks during the workday. However, it is worth mentioning that some smokers may have underlying health conditions that are considered disabilities under the ADA, and these individuals may be entitled to reasonable accommodations.

The ADA defines a disability as "a physical or mental impairment that substantially limits one or more major life activities". While smoking can cause or aggravate serious medical conditions, it is not recognised as a disability in itself. The focus of the ADA is on providing equal opportunities and preventing discrimination against individuals with disabilities, rather than accommodating behaviours like smoking that may contribute to the development of a disability.

During the legislative drafting of the ADA, the tobacco industry lobbied to include smoking in the definition of "disability". They argued that smoking should be considered a perceived disability, allowing them to maintain that smoking is not addictive. However, these attempts were largely unsuccessful, and subsequent legal analyses and court cases rejected the idea that smoking qualifies as a disability.

It's important to distinguish between accommodating smokers and providing accommodations for individuals with disabilities related to smoking. For example, if an employee has severe asthma or chronic obstructive pulmonary disease that is aggravated by second-hand smoke, they may be protected under the ADA. In such cases, employers would have a duty to explore reasonable accommodations, such as implementing a smoke-free workplace policy or providing nicotine patches, rather than simply allowing extra breaks for smoking.

In summary, while smoking itself is not a disability under the ADA, some smokers may have underlying health conditions that are protected. Employers should be aware of their obligations under the ADA to provide reasonable accommodations for individuals with disabilities, while also recognising their responsibility to provide a safe and healthy work environment for all employees, including non-smokers.

Employers can discipline employees for taking unauthorised smoke breaks

The Fair Labor Standards Act (FLSA) states that employers are not required to give breaks to adult employees. Therefore, if an employer does allow breaks, they can place restrictions on them. For example, they can limit the number and duration of breaks, as well as specify where they can be taken. If an employee is normally allowed two breaks per eight-hour shift, the employer can legally deny any extra breaks for smoking.

Additionally, smoking is not considered a disability under the Americans with Disabilities Act (ADA) or its state equivalent, Chapter 21 of the Texas Labor Code. While addiction to alcohol or drugs can be regarded as a disability under the ADA, nicotine addiction is not specifically covered. If an employee tries to claim that they are disabled due to nicotine addiction and require extra breaks for smoking, employers can argue that extra breaks would result in a loss of efficiency and cause morale problems among non-smokers.

Employers should be aware of specific legal areas when restricting tobacco use. While some states require workplace policies that protect non-smoking employees from secondhand smoke, others provide protection for the use of lawful tobacco products outside of the workplace. However, this does not mean that employers are obligated to provide smoke breaks. Instead, they can implement smoking policies that ban smoking on company premises or restrict it to designated areas, reducing the frequency of smoke breaks and limiting exposure to secondhand smoke for non-smokers.

Employers must compensate employees for short breaks

Employers are not required by law to provide their employees with breaks, but if they do, these breaks must be compensated. This is because short breaks are considered "hours worked" under the Fair Labor Standards Act (FLSA). The FLSA does not require employers to provide rest periods, but if they decide to allow short breaks, the time is considered compensable work hours.

A U.S. Department of Labor (DOL) Wage & Hour Administrator determined that employers must compensate employees for short smoking breaks, as these are considered "hours worked" under the FLSA. This position is based on the fact that short breaks are common in the industry, promote employee efficiency, and are usually treated as work time by employers.

Breaks from 5 to 20 minutes must be counted as hours worked and compensated accordingly. This includes short periods away from the worksite for any reason, such as personal phone calls, getting coffee, or smoking. However, employers are not required to count unauthorized extensions of authorized breaks as hours worked if they have clearly communicated the break length and consequences for extending the break.

It is important to note that some states have specific laws regarding rest breaks. For example, West Virginia law requires employers to provide an unpaid 20-minute break during a workday of six hours or more. In this case, increasing the break to 21 minutes would ensure it is considered unpaid under federal law as well.

While employers are not legally required to provide smoke breaks, they must be cautious when disciplining employees for taking unauthorized breaks. Performance management should be the primary tool for addressing such issues, rather than compensation reduction.

Overall, while employers have flexibility in setting their break policies, they must compensate employees for short breaks, including those taken for smoking, as these are considered "hours worked" under the FLSA.

Employers must provide a safe work environment, which could mean a smoke-free workplace

In the United States, there is no federal law requiring employers to provide breaks for their employees, including smoke breaks. However, employers are obligated to provide a safe work environment for their employees, which could mean implementing a smoke-free workplace.

The Occupational Health and Safety Act, passed in 1970, requires employers to provide a healthy and safe workplace for their employees. The Act is enforced by the Occupational Safety and Health Administration (OSHA), which investigates employee complaints about hazardous workplaces. The Act also gives employees the right to notify their employers or OSHA about an unsafe work environment and request an on-site inspection.

OSHA has outlined several requirements for employers to ensure a safe work environment, including:

• Identifying workplace hazards and taking steps to mitigate them.
• Providing safe and properly maintained tools and equipment, including any required personal protective equipment.
• Ensuring that employees are not required to work in unsanitary, hazardous, or dangerous conditions.
• Implementing an accident prevention program that includes regular worksite inspections.
• Ensuring that all machines, tools, materials, and equipment comply with applicable safety standards.

In addition to federal laws, there are also state laws and statutes that regulate workplace safety. For example, Texas has the Texas Occupational Safety Act and the Hazard Communication Act, which impose additional obligations on employers to protect their employees from workplace hazards.

While there is no requirement for smoke breaks, employers who choose to allow breaks must count them as hours worked, according to the Fair Labor Standards Act (FLSA). This includes short periods when employees are allowed to step away from the worksite for any reason, such as personal phone calls or getting coffee. However, employers are not required to count unauthorized extensions of authorized breaks as hours worked if they have clearly communicated the rules and consequences for extending breaks.

In summary, while there is no law requiring smoke breaks, employers have a legal obligation to provide a safe work environment. This could mean implementing a smoke-free workplace to protect employees from the hazards of secondhand smoke. Employers who choose to allow breaks, including smoke breaks, must also be aware of the applicable laws regarding compensation for break times.

Frequently asked questions