Workplace Smoking Laws

Can your employer prohibit smoking and vaping at work? Here's what you need to know.

By , Attorney (University of San Francisco School of Law)

The days when smoking cigarettes in the workplace was as accepted as drinking coffee are long gone. Concerns about the impact of secondhand smoke and the health of nonsmokers have prompted most states to enact laws that severely restrict smoking in the workplace.

Many states and cities have outlawed e-cigarettes and vaping in the workplace as well.

State Laws on Smoking in the Workplace

Federal law does not regulate smoking in private workplaces. However, most states have passed laws to prohibit smoking at work, in one way or another.

Some states have a total ban on smoking in indoor workplaces, public and private. Under these laws, smoking is permitted in outdoor spaces, but often not within a certain distance of workplace entrances and exits (for example, within 20 feet).

Other states have a variety of laws that restrict smoking. For example, they might:

  • limit smoking to designated areas inside the workplace (such as a smoking break room)
  • prohibit smoking in all workplaces that are open to members of the public, or
  • prohibit smoking in only certain types of workplaces, such as hospitals and restaurants.

Smokers' Rights at Work

Where designated smoking areas are allowed, employers must often provide ventilation to limit indoor air pollution. In some states, employers must also provide reasonable accommodations to nonsmokers for their health. Some states have exceptions to these laws for very small employers, such as those with two or three employees.

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.

State Laws on Off-Duty Smoking

Employers are free to ban all smoking in the workplace, even if state law allows it. In other words, there is no law that protects your right to smoke at work. However, employers have less freedom to regulate off-duty smoking by employees. Several states have laws prohibiting discrimination against smokers.

Other states have more general laws protecting an employee's right to engage in "lawful conduct"—including the consumption of tobacco products—while away from work. In these states, employers may not fire or take any other negative action against an employee for smoking cigarettes during non-working hours while away from the workplace.

In some states, employers can require smokers to pay higher health insurance premiums than nonsmokers. Employers may also offer certain financial incentives for employees to participate in a wellness program to quit smoking.

Vaping at Work: What Are Your Rights?

In recent years, many people have turned to e-cigarettes and vaping instead of traditional tobacco products. While e-cigarettes do not contain tobacco, they do contain nicotine and other chemicals. Because these devices have only been around for about a decade, the health effects are still relatively unknown.

Can You Get Fired for Vaping at Work?

Whether you can be disciplined or fired for vaping at work depends on the laws in your state. An increasing number of states, including California and Hawaii, have passed laws incorporating e-cigarettes and other vaping products into workplace bans on smoking.

In these states, e-cigarettes are prohibited wherever regular cigarettes are prohibited. That means you can be disciplined or terminated if you violate the rules in your workplace.

In other states, e-cigarettes and vaping products are explicitly not included in workplace smoking bans.

However, many states have yet to address the issue at all. Some cities have passed laws prohibiting e-cigarettes and vaping in the workplace.

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