Smoker Protection Laws

There is no federal law on workplace smoking, so most states have their own smoking laws. Some cities and counties also pass local ordinances.

Balancing smoker protection laws against nonsmoker protection presents a delicate balance for employers.

Basics of Smoking Laws

Smoking laws vary. Employers are free to ban smoking in the workplace. They can also designate smoking areas. In some states, smokers have legal protections against workplace bias, while in other states, they don't.

The purpose of existing laws is to protect workers' health. Concerns about the effects of secondhand smoke on nonsmokers led most states to create laws that limit smoking at work. Recent studies show that nonsmokers exposed to tobacco smoke can develop serious health effects. Some of these health problems include lung cancer and heart disease. Secondhand smoke exposure can also increase health care costs.

Workplace Smoker Protection Laws

Employers can adopt a no-smoking policy. But bias against smokers is not allowed in most states. Twenty-nine states and the District of Columbia have laws protecting smokers from employment discrimination.

These laws prohibit employers from considering an employee's tobacco use when making decisions about:

• Compensation
• Discipline
• Firing
• Hiring

Some state laws prohibit places of employment from banning employees from smoking outside the workplace.

• California, Colorado, New York, and North Carolina are the only four states without employee tobacco use laws.
• Nevada employers cannot restrict applicants or employees from smoking during off hours.
• North Dakota employers cannot discriminate against a worker because they smoke during nonworking hours unless the smoking conflicts with the interests of the business.

In those states, state legislation that forbids employers from discriminating against employees who engage in legal activities protects smokers.

Legal Exceptions to Workplace Smoker Protection

Most state laws that treat smokers as a protected class have exceptions.

For example, if you have a job or seek a job with an organization that promotes nonsmoking. Other exceptions include:

• Private offices where only smokers work
• Restriction relates to a bona fide occupational requirement
• Workplaces that typically host private functions
• Workplaces where the employer can establish that compliance is financially and physically unreasonable

In New Jersey, an employer can discriminate against smokers if the employer has a "rational basis for doing so which is reasonably related to employment duties."

Smoking and Off-Duty Conduct

Employers can restrict workplace smoking, including banning it entirely. But, they often have less freedom to regulate employees' smoking off hours.

• California employers can't take action against you for legal activities you do away from the work environment.
• Nevada state law protects employees from discrimination for the lawful use of any product offsite during non-work hours.

If the employer can argue an ongoing health hazard or labor code reason for the ban, it may have a valid case.

Local Ordinances

Besides state laws, many cities and counties passed regulations against smoking in the workplace. Contact your local government offices to determine if your area has such an ordinance.

E-Cigarette Use in the Workplace

Some smokers vape and smoke e-cigarettes. Your state's laws determine whether you can get fired for vaping at work.

As of July 2024, 19 states have laws that specifically ban using e-cigarettes in workplaces:

• California
• Colorado
• Connecticut
• Delaware
• Hawaii
• Illinois
• Massachusetts
• Minnesota
• Nebraska
• New Jersey
• New Mexico
• New York
• North Dakota
• Ohio
• Oregon
• Rhode Island
• South Dakota
• Utah
• Vermont

Laws prohibit their use wherever they ban traditional cigarettes.

Smoking Cessation Programs

Employers can offer incentives to quit smoking. These include cessation programs or wellness programs. Businesses often get credits on health insurance premiums by doing this.

Health Insurance Premiums

State laws forbid employer bias against smokers. But, employers and insurers can demand smokers to pay higher health insurance premiums.

Nonsmoker Protection in the Workplace

Most states have regulations that protect workers from tobacco smoke. Some laws directly regulate smoking in the workplace. In Florida, for example, the law prohibits smoking in all enclosed workplaces (except private residences and bars). A few states limit or ban smoking in public places and workplaces.

If a law limits smoking at work, it often allows smoking in a designated area. Employers may have to provide ventilation to protect air quality. In California, workplaces with five or more employees must prohibit smoking in enclosed work areas. Employers may provide a smoking breakroom as long as nonsmoking employees have enough breakrooms.

Other laws, such as the federal Americans with Disabilities Act (ADA) and worker's compensation, may also provide legal protection for nonsmokers.

Nonsmokers and the ADA

Employers must provide reasonable accommodations for disabled nonsmokers to protect their health. The Americans with Disabilities Act (ADA) may protect workers with severe medical conditions affected by tobacco smoke.

Under the ADA, a disabled worker can request accommodations. If the issue is tobacco smoke, you may ask for a smoke-free workplace. But, if your employer can show that smoke-free policies would cause an "undue hardship," they may not have to accommodate you.

The ADA prohibits employers with at least 15 employees from discriminating against workers with physical or mental disabilities. To make a successful claim under the ADA, you must prove that you have an impairment that "substantially limits a major life activity." In cases involving tobacco smoke, you must show that smoking in the workplace severely limits your ability to breathe.

Workers' Compensation

Employees injured at work might be eligible for workers' compensation. Some workers have gotten benefit awards for harm caused by secondhand smoke from tobacco products.

Speak to a Local Attorney to Learn More About Smoker Protection Laws in Your State

Banning smoking in the workplace can be a controversial issue. It all comes down to corporate culture and local and state laws. If you want to learn more about smoker protection laws in your area, you should speak with an employment lawyer in your state.