What Are My Rights as a Cigarette Smoker?

At the California Labor Law Employment Attorneys Group, we help people who believe they have been discriminated against by their employer. We are asked questions every day about an employee’s right to be a smoker. Examples of such questions include:

  • Can I be fired for smoking cigarettes in California?
  • What are smokers’ rights in the workplace in California?
  • I am facing smoking discrimination in the workplace. My boss discriminates against me for smoking. Can he legally do that? I want the best lawyer to sue my employer. Who is the best lawyer to do this?
  • Can my employer terminate me for smoking cigarettes in my own time? Can I sue my employer if that happens?
  • I smoke cigarettes at home or during my lunch break. I do not smoke at the workplace. Can my employer legally fire me or discriminate against me for smoking?
  • Can I smoke from an electronic cigarette or vapor device at work?
  • Can I lose my job because I was smoking cigarettes? If I lost my job, can I sue my employer? How can I contat a lawyer to sue my employer?

Gone are the days of smoking in bars, the workplace, and even on airplanes. Despite smoker numbers going down, there are still some who light up a cigarette in order to satisfy their addiction, and it is well within their right to do so. They must do so within the legal bounds and no put any of their coworkers’ health and safety at risk. But just because there are many regulations on where smokers can light up does not mean that their rights to smoke are not protected, especially in the workplace. If they follow the rules, employers cannot discriminate against them simply because they are smokers. This goes for both employees and applicants: an employer cannot discriminate against someone just because they smoke cigarettes, assuming the smoker follows all health and safety regulations.

What Workplaces Are Subject to California’s Smoking Laws?

In the state of California, it is unlawful for employers to maintain a workplace that poses a danger to safety and health of the people who are employed under that roof. Smoking poses a threat to both of those, and so California prohibits smoking in all enclosed workspaces. Smoking is prohibited within 20 feet of entrances, exits, windows, or ventilation systems. These laws include both private and public, inside of vehicles, parking garages, and other common areas that are shared by the public like bathrooms, stairwells, elevators, and other such spaces.

The Workplace smoking laws apply to all workplaces with five (5) or more individuals. The only exceptions to these rules in which smokers are allowed to spark one are designated lobby areas, meeting/banquet rooms when food is not being served, and vehicles when there are no nonsmoking employees present.

Where Can an Employee Legally Smoke?

An employer cannot allow smoking in any workplace that is enclosed and must take reasonable action to prevent nonemployees from taking out a cigarette and lighting it up. An employee can legally smoke in a workplace if the employer has designated areas, like break rooms, for smoking. These break rooms or areas cannot be in a work area. That is, an area which is inhabited by employees who perform their daily tasks in that area. No employee must be obligated to enter that room as a part of their job function and perform their necessary job functions. For example, a nonsmoking employee cannot be required to go into that room to pick up necessary office supplies if he or she is opposed to smoking. The contaminated smoke-filled air must be vented directly to the outside with a verified fan and cannot circulate throughout other areas of the building.

Do Employers Have to Designate a Smokers Room?

Employers in the state of California are not obligated to provide a smoke room for smokers if they do not wish to do so. If employers provide such a break room, they are legally obligated to provide a break room for all nonsmokers. Employees have a right to a workplace free from secondhand smoke.

This means that there exist no legal accommodations for smokers, but employers with five or fewer employees may permit smoking in a designated area if the conditions listed below are met:

  • It is unanimously decided by the employees that the smoking area is allowed;
  • There are no minors allowed in the smoking area; and
  • No employee is required to enter the smoking area as a part of their job task.

Employers are also not required to have any written or oral policies in California. This may come down to the location of your employer, meaning that the city, county, or town laws may be more specific to what an employer should do regarding written/oral policies. Some may require employers to have a smoking policy in place, while others may not. Employers are free to adopt legal policies on smoking in the workplace if they so choose.

Can an Employer Discriminate Against a Smoker?

An employer may not discharge an employee simply because they are a smoker. For example, let’s imagine an employer who is adamantly against smoking and then learns that one of their employees is a smoker. The employer then decides to fire this employee simply because he or she is a smoker. The employee did nothing unlawful, and in the state of California, an employer may not terminate an employee for taking part in legal activity outside of the workday. Since smoking is legal in California, an employer cannot dismiss you from your position.

Can I Smoke E-Cigarettes at Work?

Many people believe that e-cigs or vapor devices pose no threat to health and safety, but a growing body of scientific evidence says otherwise. Many states do not yet have laws regulating the electronic smoke devices, but cities like Boston, Chicago, New York, and Los Angeles have laws in place that restrict their use. It is recommended that employees ask their employer’s policy regarding e-cigarettes before they violate a work policy if the state, city, or town does not already have laws in place.

Can My Employer Charge Me More for Health Insurance?

Your health insurance premium is based on many factors, and the most important ones are your current health and how high your risk of death is. Smoking has been linked to many health issues, including cancer, and so a smoker’s risk is higher than a nonsmoker. Many employers have started charging their employees higher premiums. The Affordable Care Act (ACA) does eliminate discrimination towards many health conditions, but smoking is not one of the protected conditions.

What Happens If I’m Discriminated Against for Smoking?

Smokers are not a protected group of people like minorities and women. But smoking is not illegal, and so employers cannot base decisions towards employees because of their dislike or annoyance towards smokers and their habit. In the state of California, your employer cannot discharge you from your position for partaking in legal activity outside of the workday and -place.

If your employer has wrongfully discharged you from your position, you may have the grounds to file a claim against them and collect damages to which you are entitled. Damages include such things like back pay, front pay, and other benefits you once held at your position.

  • Back Pay – This is pay that you get for the missed wages and work that could have been done if you had not been wrongfully terminated.
  • Front Pay – More often than not, tensions between employee and employer run high (especially if there is a lawsuit between them) and reinstatement is not the most viable option. If this is the case, the courts may order your employer to pay front pay which gives you a payment until you can find a new job.
  • Other Benefits – If you had benefits like a health care policy or retirement plans, like a 401k, you might also be entitled to compensation when/if you lose those benefits upon your termination.

What Happens If I Smoke and Break Company Policy?

Breaking company policy subjects you to the reprimands of the employment contract you may have signed. California is also an “at-will” state, and so employers can fire you for any legal reason. You still may have been wrongfully terminated, even if you broke policy. If a contract, for example, states you will be given a certain amount of warning before a termination and you are fired after only your first offense, you may have the grounds to file a suit against your employer for breach of contract. Our Los Angeles attorneys can help with this.

Our Los Angeles lawyers offer free consultation and a zero-fee guarantee. The free consultation gives you the opportunity to sit with one of our attorneys and explain your case to them – without any cost to you. The attorney will then give you their thoughts on the matter and assist you on your next move, should there be a next move.

Free Consultation and Zero Fee Guarantee

Zero-fee guarantee means that you will not pay unless we win the case. If we win the case, we will charge only a small fee on the amount allotted. Contact California Labor Law Employment Attorneys Group now to speak to one of our attorneys.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.