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Your Rights Smoking and the Workplace

Outten & Golden LLP

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. I believe that my employer's smoking policy violates my rights. What do I do?
  10. Where can I get more information on nonsmokers rights in the workplace?

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

The vast majority of states regulate smoking in the workplace. There is no federal law which governs smoking at work, so smoking regulations vary significantly from state to state. Many states prohibit smoking in any indoor area of the workplace, but allow the employer to designate a smoking area. Other states ban smoking altogether at the workplace, while a few states have no laws restricting smoking at work. In addition to state laws, local laws (city or county) may impose stricter regulations on smoking at work. Even if there is not an applicable law, the employer can have its own workplace smoking policies that prohibit smoking entirely or limit it to certain areas, such as a break room. For more information, see the state smoking laws page.

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 the employer the right to declare the workplace smoke free. Other states have laws allowing an employer to designate a specific "smoking area" that is segregated 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. For more information, see the state smoking laws page.

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

It has been established that secondhand smoke from cigarettes leads to thousands of nonsmoker deaths a year due to lung cancer and heart disease. Some states who have established smoking bans in bars and restaurants have done so on the basis of protecting workers from second-hand smoke. Being around coworkers while they are smoking can be hazardous to your health, especially if you are breathing in tobacco smoke every single workday.

4. Does workplace smoking violate health and safety laws such as OSHA which regulate 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 air quality standards, but tobacco smoke almost never exceeds theses limits. In 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. For more information about OSHA, see our site's workplace health and safety page.

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

If you have a health condition that is made worse by others' smoking in the workplace, you should ask your employer for an accommodation. 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 accommodate you, you may be able to pursue a claim with your state's health department or under the Americans with Disabilities Act (ADA). For more information on bringing an ADA claim, see our site's disability discrimination page.

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

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

In these states, it is entirely legal for an employer to ask you whether or not you are a smoker and to hire or not hire you based on that answer. However, there are some states that do prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco. In these states, it is illegal for an employer to not hire you simply because you smoke. However, employers may be able to get around this type of anti-discrimination law in certain states if being a nonsmoker is an important part of a specific job's qualifications. For example, an antismoking advocacy group, like the American Lung Association, could choose not to hire a smoker. For more information, see the state smoking laws page.

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

This depends on the state you live in. Thirty states have "smoker protection laws" which make it illegal to discriminate 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 don't have these laws, so employers are free to fire smokers, even if their tobacco use is solely outside the workplace. For more information, see the state smoking laws page.

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. Many employers hope that increased premiums to smokers will encourage them to quit smoking, saving money and future health problems. Even the state laws which protect smokers from being fired for smoking often contain an exception that allows employers to charge smokers higher insurance premiums.

9. 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, contact your state's labor department or health department, or a lawyer in your state, for more detailed information about the particular laws of your state and what legal options are available to you.

10. 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.

This page was updated on February 28, 2012

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