• Choose Language:
  • print
  • decrease text sizeincrease text size
    text

Your Rights Smoking and the Workplace

Clark Law Group

Zuckerman Law

This page provides answers to the following questions:

  1. Do I have the right to smoke at work?
  2. Do I have the right to a workplace free from secondhand smoke?
  3. Is being around coworkers who smoke hazardous to my health?
  4. Does workplace smoking violate health and safety laws such as OSHA which regulate exposure to hazardous substances?
  5. I have a health condition which is aggravated by smoking. Is my employer required to accommodate me by preventing others from smoking?
  6. Is it legal for an employer to only hire non-smokers?
  7. Tobacco is a legal substance. Can I be fired for smoking away from work?
  8. Is it legal for my employer to charge me more for my health insurance because I am a smoker?
  9. Can I smoke from an electronic cigarette or vapor device at work?
  10. I work for a government agency that provides hazard pay, am I entitled to hazard pay when I have to work around secondhand smoke?
  11. I have been injured by secondhand smoke, could I get compensation?
  12. I believe that my employer's smoking policy violates my rights. What do I do?
  13. Where can I get more information on nonsmokers rights in the workplace?

1. Do I have the right to smoke at work?

Most states regulate smoking in the workplace to some degree. There is no federal law that governs smoking at work, so smoking regulations vary significantly from state to state. Some states prohibit smoking in indoor areas of the workplace. Some states prohibit smoking in workplaces, but allow employers to designate a smoking area.. Other states ban smoking altogether in the workplace. And a few states have NO laws restricting smoking at work. As for smoking outside the workplace, there are some states that permit smoking only in certain establishments, like bars, and other states that permit smoking everywhere, except in certain places, like hospitals and restaurants.

In addition to state laws, local city or county laws may impose stricter regulations on smoking at work. Even if there is not an applicable law, employers can have their own workplace smoking policies that prohibit smoking entirely or limit it to certain areas, like a break room, or outside area. While these laws have been challenged in court, they are generally upheld. To find out what the smoking laws are in your state, see our page on State Smoking Laws.

2. Do I have the right to a workplace free from secondhand smoke?

Some states have passed laws either requiring that the workplace be smoke free, or giving employers the right to declare their workplace smoke free. Other states have laws allowing employers to designate a specific "smoking area" that is separated from the workplace so employees may easily avoid exposure to second-hand smoke. However, if your state does not have a law, and your employer does not have a policy, then you may not be protected if your coworkers choose to smoke.

3. Is being around coworkers who smoke hazardous to my health?

Secondhand smoke leads to thousands of nonsmoker deaths per year from lung cancer and heart disease. Being around coworkers while they are smoking can be hazardous to your health, especially if you are breathing in tobacco smoke every day at work. The CDC reports that most exposure to secondhand smoke occurs in homes and workplaces.

4. Does workplace smoking violate health and safety laws like OSHA, which regulates exposure to hazardous substances?

OSHA, short for the Occupational Safety and Health Act, gives you, as an employee, the right to have a safe and hazard-free workplace. OSHA does have indoor air quality standards, but tobacco smoke almost never exceeds theses limits. In rare and extreme circumstances -- for example, when tobacco smoke combines with another airborne contaminant in the workplace -- the OSHA standards may be exceeded and OSHA will require the employer to remedy the situation. In general, exposure to tobacco smoke will be regulated solely by state laws, not OSHA or other federal laws. For more information about OSHA see our site's workplace health and safety page.

5. I have a health condition that is aggravated by smoking. Is my employer required to accommodate me by preventing others from smoking?

An employee that has a legitimate health condition, which goes beyond mere annoyance, may require their employer to prevent harms from secondhand smoke. If you have a health condition that is aggravated by secondhand smoke, you should inform your supervisor of your condition and ask for an accommodation to prevent additional harm. Many state laws explicitly require employers to provide certain accommodations to non-smokers.

Examples of accommodations include segregation of smokers and non-smokers, restricting the areas where employees can smoke, and providing improved ventilation systems. If your employer does not reasonably accommodate you, you may be able to pursue a claim with your state's health department or under the Americans with Disabilities Act (ADA). Courts are especially interested if the condition caused the employee to seek medical care, take time off from work, or change their daily activities. For more information on filing an ADA claim, see our site's disability discrimination page.

6. Is it legal for an employer to only hire non-smokers?

With some restrictions, employers are free to hire whomever they want. Federal and state laws prohibit discriminating against people for a variety of reasons (for example, race, sex, and national origin). Existing anti-discrimination laws do not prohibit employers from discriminating based on whether or not the person is a smoker.

In some, it is legal for an employer to ask you whether you are a smoker, and to hire, or not hire you based on that answer. However, 29 states and the District of Columbia do prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco. In these states, it is illegal for an employer not to hire you simply because you are a smoker. Employers may be able to get around anti-discrimination laws in certain states if being a non-smoker is an important part of a specific job's qualifications. For example, an anti-smoking advocacy group, like the American Lung Association, could choose not to hire smokers, and not be in violation of the applicable anti-discrimination laws.

The following states prohibit employers from refusing to hire smokers, unless being a smoker goes against a specific job qualification:

  • California
  • 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
  • Virginia
  • West Virginia
  • Wisconsin
  • Wyoming

7. Tobacco is a legal substance. Can I be fired for smoking away from work?

This depends on the state you live in. Twenty-nine states have "smoker protection laws" which make it illegal to discriminate against an employee for the use of "lawful products outside the workplace," (understood to refer to cigarettes) or for smoking in particular. In these states, you cannot be fired for legally using tobacco. However, many states do not have these laws, so employers are free to fire smokers, even if their tobacco use is solely outside the workplace. As with hiring, employers may terminate employment due to an employee’s smoking habit, if smoking infringes on a valid job requirement.

8. Is it legal for my employer to charge me more for my health insurance because I am a smoker?

Yes, in most cases. With health insurance costs raising dramatically in recent years, especially for smokers, many employers have started charging smokers higher premiums. Employers hope that increased premiums to smokers will encourage them to quit smoking, saving money and future health problems. The Patient Protection and Affordable Care Act (ACA), which eliminates discrimination for many health conditions, still permits employers and insurers to increase premiums for smokers while reducing premiums for non-smokers. Even the state laws that protect smokers from being fired for smoking contain exceptions that allow employers to charge smokers higher insurance premiums.

9. Can I smoke from an electronic cigarette or vapor device at work?

Many state laws do not specifically mention electronic cigarette usage in the workplace. Some newer laws, like in Minnesota and South Dakota, specifically ban electronic cigarettes in workplaces. On the other hand, in Kansas, according to the Attorney General, e-cigarettes do not violate the State’s Clean Air Act of 2010, and there is no prohibition on smoking in workplaces. Due to the uncertainty in many states, employees should ask their employer what the company policy regarding e-cigarettes is.

While many state governments have not answered this question yet, some localities have attempted to ban e-cigarettes. You can find a list of localities that have banned e-cigarettes, as of April 2, 2015, at No-Smoke.org.

10. I work for a government agency that provides hazard pay, am I entitled to hazard pay when I have to work around secondhand smoke?

Probably not. Hazard pay is usually given when the employee perform tasks that are risker than usual. So, hazard pay depends on the risk associated with the job. Jobs that provide hazard pay usually have a requirement that the action has a much higher than usual probability to harm the employee. Federal courts have determined that for certain jobs, like prison guards, secondhand smoke exposer is not enough of a risk to give hazard pay. To see if secondhand smoke exposer qualifies an employee for hazard pay, the employee should determine how risky their job typically is, and how much risk secondhand smoke will add.

11. I have been injured by secondhand smoke, could I get compensation?

When an employee is injured at work they may qualify for Workers’ Compensation. In some states workers’ compensation commissioners have granted compensation if secondhand smoke exposure injured the employee while at work. But the standards may be high. Typically, the injury must be caused by regular and long-standing exposure to secondhand smoke, and the employee must have attempted to avoid smoke from other sources while not at work. If this occurs the commissioner may grant an employee past and future medical expenses and temporary disability benefits.

12. I believe that my employer's smoking policy violates my rights. What do I do?

The first thing you should do is voice your concerns to your employer. Your employer may be unaware that its policy is illegal or harmful to you. If your employer is unresponsive to your concerns, contact your state's labor or health department, or a lawyer in your state. This is the best way to get more detailed information about the particular laws of your state, and what legal options are available to you.

13. Where can I get more information on nonsmokers rights in the workplace?

For more information, visit the Americans for Nonsmokers' Rights website at www.no-smoke.org.


Ask an Employment Lawyer Online Now!
Ask a Question, Get Answered ASAP!
Ask a Lawyer >

Follow us on: