There are many people who smoke, and this often presents a potential problem for employers. Balancing the rights of smokers and non-smokers, and navigating a variety of laws and regulations can be a difficult task to manage. Here is a useful guide when it comes to smoking in the workplace.
It is important to remember that laws regulating smoking will vary from state to state. Generally speaking, employers have the right to prohibit employees from smoking in the workplace. However, most states take this a step further and actively require them to do so. Counties, cities, town governments and other municipalities might have rules and regulations of their own. Depending on the location, local laws might prohibit smoking in all but certain types of businesses, such as bars or some restaurants.
Some states allow employers to establish designated smoking areas in their workplaces. These usually must be enclosed and carefully ventilated. However, many states prohibit this, and there may also be restrictions on which types of businesses can include designated smoking areas; for example, health care facilities usually do not allow designated smoking areas. For businesses where smoke rooms are provided, there must be breakrooms available to non-smokers so that they have a place to go.Although smoking outdoors is usually allowed, there may also be restrictions placed on where smoking can occur. Smoking is typically restricted within a certain distance of a buildings entrances, exits and the ventilation systems intake. These rules will also vary from state to state.
Hiring and Firing
While smoking might be restricted in the workplace, it may be illegal for a business to hire or fire employees based on their smoking habits. Although some states offer no legal protections for smokers, a few (including New York, Colorado and California) explicitly state that employers cannot punish employees for lawful activities performed while not at workincluding smoking. Employers in these states also cannot base hiring or firing decisions on off-duty tobacco usage. Note that this only applies to tobacco. The smoking of marijuana is an entirely different matter because it is illegal on a federal level and in many states.
ADA and OSHA
What about the rights of non-smokers? The Americans with Disabilities Act is designed to protect workers with a disabling condition in a workplace setting. Under the terms of the act, employees with a health condition, such as asthma, breathing problems or severe allergies can make a request that smoking be prohibited, but must provide evidence that exposure to smoking will make their condition worse. The ADA applies to almost any business with 15 or more employees, but if a business can demonstrate that compliance would create an undue hardship, it may not have to comply with the request. On the other hand, the Occupational Safety and Health Act applies to everyone, both with disabilities and without. However, it does not usually help protect non-smokers from secondhand smoke because indoor smoking rarely exceeds the air quality requirements set by the act.
Electronic cigarettes and vapor devices are becoming increasingly popular as traditional tobacco usage declines. Due to the sudden surge in popularity of these devices, regulations governing them are not comprehensive. Many states do not specifically mention these devices in their laws, although a small handful do. Some of them treat e-cigarettes the same way they treat regular cigarettes, while others expressly permit them as an alternative to traditional products. Additionally, many municipalities have created their own laws regarding electronic and vapor devices. Employers and employees should check with local authorities when it comes to specific smoking regulations. Although there are many different ways that tobacco use is governed, determining each partys rights does not have to be difficult.