HR Policy & Compliance Experts Since 1972

Few topics divide employees more quickly or completely than the issue of workplace smoking. Employees' emotional reactions compound the employer's difficulty in establishing a smoking policy that pleases both nonsmokers and smokers while complying with state and local laws. This article discusses smoking policies that balance the concerns of smokers, nonsmokers, and the employer and provides practical guidance for implementing effective policies.

Statutory Restrictions

When drafting workplace smoking policies, you first should consider any state statutory restrictions or local ordinances protecting the rights of smokers and nonsmokers. The majority of states has passed legislation to 
restrict or limit smoking in workplaces or in "public places," a term that may include some private workplaces. Most states that regulate smoking attempt to balance smokers' and nonsmokers' rights by permitting certain areas to be designated for smoking. For example, Florida provides that an entire area may be designated as a smoking zone if all employees routinely assigned to work in that area agree. See Fla. Stat. Ann. §§386.201, et seq. Many of the 
states, such as New York, also require employers to adopt written policies and complaint procedures and to post notices of their policies. In addition to state laws, employers may have to comply with local ordinances, which often are more restrictive and impose greater fines.

You also should determine if your state has a "smokers' rights" law. Over half of the states prohibit employers from refusing to hire or from taking any other adverse employment action against employees or applicants who smoke away from the employers' premises during nonworking hours. For example, according to New Jerseys' law, found in N.J. Rev. Stat. §34:6B-1, employers may not refuse to hire applicants who smoke and may not 
discriminate against smokers in any term, condition, or privilege of employment, although they may make distinctions between smokers and nonsmokers if the basis is rational and reasonably related to employment. Indiana, Kentucky, Maine, Mississippi, and New Mexico have similar laws. Thus, employers in those states should not prohibit off-duty smoking in their 
smoking policies or refuse to hire smokers. 

You also should consider potential liability for employees' illnesses caused by secondhand smoke in the workplace. Some courts have held employers responsible to employees who have been injured by secondhand smoke by requiring the payment of workers' compensation, unemployment, and disability. For example, in McCabe v. Workers' Compensation Appeal Bd., 738 A.2d 503 (Pa. Commw. Ct. 1999), the court determined that an employee was entitled to workers' compensation benefits because she 
established she had a disability as a result of the aggravation of her asthma by secondhand smoke at work. 

A few courts have even found that employers have a legal duty to provide a smoke-free workplace, although these cases are more rare. Finally, unionized employers may have to negotiate over smoking policies under the  terms of their collective bargaining agreements.