September 5, 2013

Smelly Smokers & Your Rights as an Employer

Do your rights as an employer allow banning of smokng?

“I need your help. I have an employee who smokes – a lot. She comes to work every day smelling horrible and takes frequent smoke breaks every few hours. It’s starting to upset my other employees, and even the patients are commenting about the smell. What can I do? Can I say something?”

More than 20 states have laws designed to specifically protect smokers or employees that participate in any lawful off duty activity. These laws are now being broadly interpreted by the EEOC, so smokers can fall into a protected class. What does not fall into a protected class, however, is “things that smell foul, including an employee.” It’s the smell you want to go after, in most instances.

For the doctor above, who resides in PA, there are no protections for smokers. Employers and those who own buildings can, in that state, make entire facilities (including outdoor areas) smoke free for employees. If you make this a new policy, distribute to it to everyone. This will help cure the problem of those who smoke outside your office.

You can certainly sit down with your employee to communicate in a thoughtful, rather than “matter of fact,” tone what is expected of her. You need to always be mindful of the circumstances surrounding issues with any employee. For your issue, take a progressive corrective coaching approach and relay the information as follows:

  • 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.
  • The impact is that patients feel uncomfortable to the point of complaining. We need you to consider that you are working for a health care facility and must be mindful of the effect that the offensive smell is having on the patients.
  • We want to assure you that, at times, the smell is overwhelmingly unpleasant. And we have addressed this issue with you before.
  • From this point forward, if at any time a patient, co-worker, or myself notice the issue again, you will be sent home (off the clock) to change. If the problem persists, it’s a violation of the company’s policy and further instances will likely lead to termination.

Be sure to put this corrective action in writing and have her sign an acknowledgement. It sounds like you are concerned with her health and the effect that this has on your practice, and that you wish for a solution in which you don’t have to resort to threatening your employee.

Smoking is a brutal habit. My step father smoked until the moment he died from lung cancer. At some point, we had to stop judging him and accept his bad choice and separate from it.

But bottom line, it’s your practice and your patients. Don’t let a smelly smoker negatively affect your business.

As always, if you have a question about what I’ve discussed, or if I’ve raised a concern for something happening in your practice, call us at 866-414-6056. If we can, we will help you at no charge.

Friendly Disclaimer: This article is general education and guidance and is not a substitution for legal advice. Employment issues are complicated and often require specific expert or legal guidance based on the circumstances.

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 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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