Multiple employers called into the Employer Services Central Office this summer to ask one question: “Do I have to give employees who smoke an extra break?” Some employers even wondered whether smoking is a protected disability that must be accommodated under the Americans with Disabilities Act. The answer to both questions is “no.” After receiving an influx of calls from employers this summer regarding employee smoking breaks, I decided to use this blog as a way to “decode” fact from fiction.
Employers in the vast majority of situations do not have to give breaks during the day, so if a company does allow breaks, it can put whatever strings it wants to on those breaks. That includes limits on how long the breaks can be, how many breaks occur during the day, and where the breaks can or cannot be taken. For example, if an employee is normally allowed two breaks per eight-hour shift, the employer can legally deny any extra breaks for smoking.
Smoking by itself is not a “disability” under the ADA or its state equivalent, the Texas Commission on Human Rights Act. One way that would not be the case is if the employer were to make the mistake of regarding the employee as disabled. The law is such that regarding a non-disabled person as disabled will generally bring them under the protection of disability protection laws. Another theoretical way is if the person is so dependent upon nicotine in tobacco products that they can be considered an addict. Addiction to alcohol or drugs can, under some circumstances, be regarded as a disability under the ADA. If a person’s addiction becomes so bad that it substantially impairs a major life activity such as working, walking, sleeping, seeing, or breathing, the addiction may be covered under the law.
If a person has a covered disability, such as nicotine addiction, the employer has a duty to explore with the employee whether a reasonable accommodation exists that would allow the person to nonetheless do the job. So, if an employee tries to claim that they are disabled due to nicotine addiction and must be allowed to have extra breaks for smoking, do not worry – remember that even if the ADA applies, employers do not have to accept whatever accommodation an employee might request, and there are other accommodations that might be reasonable in such a context, such as nicotine patches. An employer could well argue that extra breaks would not be a reasonable accommodation due to loss in efficiency, morale problems among non-smokers who do not get extra breaks, and so on. The bottom line is that a company does not have to make an exception to its break policy just to let smokers take extra breaks.
Lisa Bogany is a Senior Business Consultant for Workforce Solutions in the Houston metropolitan area. She has over five years of experience in workforce development, primarily working with employers, and over 10 years experience in small business entrepreneurship.
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