Employee Smoking & Your Rights as an Employer

There are plenty of reasons that drive employers to limit or ban smoking at the workplace. It can upset customers, patients, and coworkers when employees smell like smoke. It often upsets other employees when smokers seem to get extra breaks to support their habit. And, frankly, employees who smoke can cost employers money by taking frequent paid breaks and causing increases in premiums for employer-provided insurance plans.

But do employers have a right to refuse to hire smokers, or to fire employees as a result of their smoking? It turns out that the answer to these questions depends on where you live and what the employee does for your business.
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Off-Duty Conduct Laws that Protect Smokers

According to the 2010 National Conference of State Legislators, 29 states and the District of Columbia prevent employee discrimination based on legal conduct that an employee engages in when off-duty. 18 of those states have laws that apply specifically to tobacco use, 8 have laws that apply to the use of any legal product, and 4 states offer protections for any legal off-duty activities.

A map of the US showing the 29 states that offer employees protections for legal off-duty conduct

If your business is in one of these states, you cannot factor an employee’s legal use of tobacco (and in states like Arizona, California, Pennsylvania, New Jersey, and Nevada, their legal use of marijuana) outside of the workplace into your employment decision making process, whether that’s during the hiring process or otherwise throughout the term of their employment. And, generally speaking, it should be noted that the term “off-duty” applies to legal conduct that takes place during breaks as well as any and all time spent off the clock before and after work. 

There are exceptions to this rule, however, for jobs that require employees to be non-smokers as a result of their duties, such as positions that require serving in a public relations capacity for the American Cancer Society, for example.


Make Sure You Have a Tobacco-Free Workplace Policy in Place

Currently, no federal law exists to regulate smoking in the workplace. 28 states and the District of Columbia have passed comprehensive indoor smoking bans making it illegal to smoke inside public buildings and workplaces, however. And another 9 states have passed some form of strong public smoking restriction into law. That leaves 13 states with no regulation or “weaker” regulations regarding public smoking on the books, according to the American Lung Association.

Still, whether or not smoking indoors or in public has been outlawed in your state, it is generally your prerogative as an employer to ban smoking or even possession of tobacco, e-cigarettes, or any other product from your own workplace with a policy in your employee handbook. This can help you limit such unsavory activities to off-duty time (including during authorized breaks) out of sight of your customers or patients.

But, employees who smoke during breaks may well come back to work smelling like smoke (it’s an issue that the HR experts in our Solution Center hear about often). For this reason, we also recommend that employers have a policy relating to strong fragrances and offensive odors in their handbook so that they are able to address off-duty smoking that carries over to time spent on the job.

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How to Handle an Employee Who Smells Like Smoke

Though many states protect smoking as “legal, off-duty activity,” foul smells and offensive odors are not protected by law, nor are the employees those smells are attached to. In most instances, it’s the smell of smoke, and not smoking itself, that you will want to address as an employer.

First and foremost, make sure your employee handbook includes policies on tobacco use and foul odors. You’ll also want to make sure all of your employees have acknowledged the policies in your handbook by signing it.

With that protection in place, sit down with your employee to communicate what is expected of them in a thoughtful, rather than “matter of fact,” tone . Be mindful of the circumstances surrounding the issue — smoking is a serious addiction and smokers are often made to feel shame about smoking, so don’t be surprised if their initial reaction to be singled out for their habit isn’t exceptionally cheerful or warm. 

Find a private place to have the conversation with your employee. Lean on your company’s core values (if possible) to explain how smelling like smoke fails to meet the company’s expectations for its employees. Also, be ready to refer to any relevant handbook policies, if needed, and take a Progressive Corrective Coaching approach to relay the information. The actual delivery of that information should go a little something like this:


1. Address the facts without offering opinions.

“The issue is that, while you are at work, patients and employees are complaining of a foul smell when they come into contact with you, which everyone attributes to smoking.”


2. Address the direct impact of those facts.

“The result is that patients feel uncomfortable to the point of complaining. We need you to consider that you are working for a healthcare facility and must be mindful of the effect that the smell of smoke has on our patients.”


3. Reason with the employee.

“Now, clearly this isn’t an issue you’re creating on purpose, but I can assure you that, at times, the smell is overwhelmingly unpleasant. And we have addressed this issue with you before.”


4. Request that the employee change their behavior.

“I can’t prevent you from smoking on your breaks, but I need you to make sure you don’t smell like smoke when you come back to work. From this point forward, any time a patient, co-worker, or I notice the issue again, you will be sent home off the clock to change. If the problem persists, know that it is a violation of company policy and further instances will likely lead to termination.”

Be sure to put this corrective action in writing and have the employee sign an acknowledgement. 

By handling the problem with a Progressive Corrective Coaching modality, it makes the issue impersonal. Rather than criticizing or shaming the employee for smoking, you are addressing violations of company expectations and policies through the lens of objective facts rather than blaming, shaming, threatening, or demeaning your employee.

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Help Employees Quit Smoking

Of course, the best way to prevent your employees from smelling like smoke at work is to help them quit the habit altogether.

Studies show that smokers generally want to quit smoking. In fact, the Center for Disease Control reports that nearly 7 in 10 smokers report that they want to quit. Further, more than half of current smokers have tried to quit at some point, though only 6 percent actually succeed at dropping the habit.

Smokers want to quit. 7 in 10 smokers want to quit, 1 in 2 have tried to quit, but only 6 percent succeed in quitting.

Cash incentives can drastically improve quit rates. Employers can also provide incentives in the form of reduced healthcare costs for employees who quit and can offer support and wellness programs to employee smokers who want to stop smoking but may not be ready to take the plunge on their own.

If you decide to implement an incentive program to help employees quit, a word of warning: in the past, instituting such programs as a “surcharge” or “penalty” for nicotine users rather than as extra incentives or benefits for non-smokers or smokers who quit has been challenged as discriminatory by the Department of Labor



Nobody wants their employees to smell like smoke. But, in 29 states and D.C., it’s illegal to terminate or refuse to hire someone as a result of legal off-duty conduct, including smoking. 

Employers can address foul smells and odors, however, and can even make their workplaces smoke-free as a matter of policy even when state and local laws fail to prevent employees from smoking at work.

When addressing an employee’s smoking at work, if your business is in one of those locations that provide off-duty protections for employees, it’s best to address the smell of the smoke on their clothes, hands, and breath than it is to address the habit directly. 

When doing so, you’ll want to be kind but firm; assertive but non-aggressive. Take a Progressive Corrective Coaching approach to the conversation to maximize impact and minimize risk. You’ll also want to make sure and properly document the conversation in the employee’s file.

Employers should know that most smokers want to quit, but kicking the habit is extremely tough for nicotine addicts. Still, employers can help their odds of success by providing incentives for quitting and staying smoke free.

Like any other employee issue, problems at your workplace resulting from employee smoking should be handled with discretion and care, and they should be addressed as soon as the issue presents itself. Don’t avoid having a tough conversation just because it’s tough. Rather, deal with the issue head-on to ensure employees have a chance to correct the bad behavior before it becomes (dare we say it?) a habit.
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This post was originally published on September 29, 2016. Updated March 10, 2022.

Mar 10, 2020

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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