Can an employer ask an employee not to smoke during work hours?

We recently hired a new employee that smokes outside during work hours. The second hand smoke is effecting one of our principals so badly that he is having a hard time being in the same room with him. Can we ask him not to smoke during business hours?

Asked on September 22, 2011 under Employment Labor Law, California


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Absolutely you can ask this employee to stop smoking in the office (or outside, for example in the parking lot)) . As I'm sure you are aware, in an at will employment relationship, you as an employer have a great deal if discretion in setting the terms and conditions of the workplace. That is unless this violates your own company policy, an employment contract, or union agreement.

Also, if this action constitutes some form of legally actionable discrimination. Such discrimination would be differing treatment based on a person's inclusion in a protected class based on race, religion, national origin, gender, etc. However, being a smoker does not put someone in a protected class. Therefore while making a smoker stop smoking may be considered to be discrimination, it is not the type of discrimination that is illegal (i.e. legally actionable).  

Note: Some courts have determined that having a complete ban against smokers may be illegal based on violation of certain federal statutes and under invasion of privacy law. So, for example, having a policy of terminating an employee simply because he smokes at all (no matter where or when they smoke) may be give rise to an actionable claim.

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