What can an employer do when an employee comes back from breaks reeking of cigarette smoke?

First, an employee can be disciplined for “reeking” of cigarette smoke. The discipline would be based on the unprofessionalism and offensiveness of a person smelling of cigarettes. And some people are allergic to cigarette smoke — which can be difficult for the employer.

Laws changed in 2016 expanding smoking bans. Consequently, there are no longer smoking break rooms. The new law has extended the ban of vaporizers as smoking, and has gotten rid of most of the exemptions that were permitted in certain work environments.

Also, smokers are not entitled to additional breaks so that they can smoke. The employer can hold employees to their two rest breaks and the lunch break. Indeed, the employer has the right to ban smoking on any company premises.

It should be remembered, however, that smoking is a legal activity, and individuals are entitled to smoke on their own time. Employees are protected to engage in lawful activity on their own time pursuant to Labor Code sections 96(k) and 98.6.

Many employers prefer not to hire smokers; however, it is impermissible to ask an applicant if he/she smokes. Smoking is considered a physical concern, and the Americans with Disabilities Act (ADA) prohibits any questions about smoking.

You can find more information in the Smoking in the Workplace​ section of the HR Library.