How to Deal

It's Legal to Enforce a Smoke-Free Workplace

By Lily Garcia
Special to
Thursday, July 17, 2008; 12:05 AM

My friend works at a company that announced, starting in 2009, that nobody is allowed to smoke -- they are getting rid of the smoking areas and they expect employees to follow this policy. Is this legal? And more importantly, is this the norm? I don't smoke, but it would seem that this company feels it has more control over its employees' lives than, say, the employees themselves or the government.

It is one thing to mandate that employees not smoke on premises. It is another thing to mandate that employees not smoke at all.

Not only is it legal to enforce policies that promote a smoke-free work environment. Allowing smoking at work, if the effects are severe enough to threaten employee health, might constitute a violation of the Occupational Safety and Health Act (OSHA). Although there is no OSHA regulation prohibiting workplace smoking per se, employers could be liable for the negative effects of workplace smoking under the so-called "General Duty Clause" of the law, which states that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." More specifically, OSHA requires that employers provide employees with an acceptable level of indoor air quality, and the agency's written guidance states that employers must keep air contaminants within "permissible exposure limits." In addition, several states and localities have passed laws banning smoking, to varying degrees, in the workplace.

Telling your employees that they cannot smoke off work premises is another matter. A number of states have passed some sort of law protecting employees from employer discrimination based on legal off-duty conduct, and many of these laws explicitly protect the use of tobacco products. Common exceptions to these laws include: the conduct interferes with job performance; the conduct creates a conflict of interest; refraining from the conduct is a bona fide occupational qualification; or the employer is a nonprofit whose mission it is to discourage use of the product. For example, the American Cancer Society prohibits smoking on or off premises because this would be contrary to the mission of the organization.

Join Lily Garcia on Tuesday, July 22 at 11 a.m. ET for How to Deal Live. Lily Garcia has offered employment law and human resources advice to companies of all sizes for more than 10 years. To submit a question, e-mail We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.

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