Sunday, February 5, 2023

Smelly Smoker Can Be Cause for Discipline, But Remember Other Rights

Our employee is a smoker and comes in from breaks reeking of cigarette smoke. What can I do? Also, can I ask applicants if they smoke to avoid this problem in the future?

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.

Often employees sit in their cars and smoke, which exacerbates the problem. However, that is not the employer’s problem, it’s the employee’s challenge.

Some people are allergic to cigarette smoke—which can be yet another difficulty 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.

Although smoking is on the decline per the Centers for Disease Control and Prevention, it is likely a company will hire a smoker at some point in time, and making it clear what people are and are not entitled to is critical.

Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at

Staff Contact: Dana Leisinger

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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