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Your Rights: Smoking at Work

There's two ways of looking at individual "rights" and smoking in the workplace. On one hand, non-smokers may feel they have a right to a smoke-free workplace. On the other hand, smokers may feel they have their own right to smoke.

So which is it? Whose rights trump? For the most part, non-smokers win out.

Nonsmokers' Workplace Protection

In response to various studies and the increased publicity (mostly negative) that smoking and second hand smoke have received in recent years, many states have passed laws limiting or eliminating smoking in the workplace. But it may come as no surprise that these laws vary widely in how, and where, they apply to smokers. For example, some states impose outright bans on smoking at work, while others restrict smoking to certain areas in the workplace or a certain distance from work.

In Florida, for example, the law prohibits smoking in all enclosed indoor workplaces (except private residences and bars). A few states limit or ban smoking in not just workplaces but in public places as well. Other state laws, however, only protect nonsmoking workers through smoking laws that apply to public places or private places.

Designated Smoking Areas

That said if a law limits smoking at work, it will often allow smoking in a designated area. In California, workplaces with five or more employees must prohibit smoking in enclosed work areas, but may provide a smoking breakroom as long as nonsmokers have enough breakrooms.

Even when state laws regulate workplace smoking, exceptions may apply in:

  • Workplaces that typically host private functions
  • Private offices where only smokers work
  • Workplaces where the employer can establish that compliance is financially and physically unreasonable

These laws and regulations have not gone without challenge in court. But the bottom line is that restrictions on smoking in the workplace have generally been upheld by courts over claims that they infringe on individual liberties.

The few exceptions are where rules prohibiting smoking stretch too far beyond the boundaries of the workplace and into an employee's private life. But for some employees, such as firefighters and peace officers, even highly-restrictive prohibitions or outright bans on smoking may be found to be legitimate.

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Contact a qualified workplace safety attorney to make sure your rights are protected.

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