Smoking in the Workplace

by Attorney Amy DelPo

As health concerns increase, more and more workplaces are going smoke-free.

The days when smoking in the workplace was as accepted as drinking coffee are long gone. Concerns about the impact of second-hand smoke and the comfort of non-smokers have prompted most states to enact laws -- commonly called "clean indoor air laws" -- that severely restrict smoking in the workplace.

Some states prohibit smoking in all workplaces, public and private. Other states have a variety of laws that restrict smoking at work in one way or another, such as limiting smoking to designated areas, prohibiting smoking in only public (not private) workplaces, or prohibiting smoking in only certain types of workplaces (such as hospitals and restaurants). To find out about the law in your state, contact your state's labor or health department. You can also find state-by-state information on clean indoor air laws in Your Rights in the Workplace, by Barbara Kate Repa (Nolo).

In addition to state laws, many cities and counties have enacted ordinances against smoking in the workplace. To find out whether your city or county has such an ordinance, contact your local government offices.

Beyond what is required by state or local law, any employer is free to ban smoking in its workplace, even if state law allows it: There is no law that protects your right to smoke at work. Many states, however, have laws that prohibit employers from discriminating against smokers in work-related decisions -- for example, making hiring or firing decisions based on whether an employee or potential employee smokes.

If your employer tries to prohibit you from smoking outside of the workplace, it may be invading your privacy rights. Some states specifically prohibit an employer from interfering with your right to smoke off the job. Other states have more general prohibitions barring employers from making job decisions based on an employee's legal activities outside the workplace.

In other states, however, the law is less clear. For example, a company in Michigan garnered major media attention in early 2005 after instituting a policy that prohibited workers from smoking at all -- even off the job -- in an effort to reduce its health care costs. A handful of employees refused to comply and were forced to leave the company. In response, a Michigan state senator introduced a bill to prevent such discrimination and protect employee privacy during nonwork hours throughout the state.

For information on smoking in your workplace, review your employer's policies and contact your state and local labor or health agencies. For information about workplace smoking laws, see Your Rights in the Workplace, by Barbara Kate Repa (Nolo).

These articles are provided for general informational purposes only and cannot be relied upon as a substitute for legal advice from an attorney. The law is constantly changing and therefore Merrick Law Firm LLC encourages you to consult with an attorney about how the current state of the law applies to your specific situation.
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