Need to affix symbol for cigarette break during work hours?
**A stressful day at work might drive some craving a brief escape. For many, that's the smoking break. Yet, is it compulsory to clock out during this quick respite? Can employers obstruct workers from stepping out for a cigarette or vape?
According to Jakob T. Lange, a labor law specialist in Wiesbaden, smoking breaks constitute regular breaks—interruptions of work hours. So, if you take a smoking break, it's crucial to clock out accordingly. If there's a time recording system, your employer has the right to request you to clock out during your smoking break. This time, like other breaks, isn't considered paid work hours and may need to be compensated.
When employers can limit smoking
Although employees typically decide how to spend their breaks, specific smoking restrictions may apply due to health protection and fire safety concerns, explains Lange.
For instance, employers must ensure non-smokers' health—a requirement they must adhere to. Moreover, fire hazards could necessitate restricting smoking in certain areas, for example, at gas stations, where such restrictions are possible.
This implies that depending on the business, employers might prohibit smoking in specific areas, work zones, or even the entire premises. However, imposing an unrestricted smoking ban for employees may not be feasible in general, according to prevailing legal opinion.
Crucially, employers must consider the works council's co-determination rights when it comes to smoking-related policies, Lange asserts. Typically, the works council's agreement is necessary for implementing or modifying smoking policies.
Jakob T. Lange is a labor law specialist, serving on the Executive Committee of the Labor Law Working Group in the German Bar Association (DAV).
Enrichment Insights
- Jurisdictional Laws: In several jurisdictions, employers don't have to provide smoking breaks, but specific laws might regulate smoking in premises or designated smoking areas. Some states or countries may restrict smoking in workplaces or require employers to provide smoke-free zones[4].
- Employment Contracts: If smoking breaks are part of employment contracts or collective bargaining agreements, employers must adhere to these terms. Alterations might necessitate negotiations with employee representatives.
- Co-Determination and Works Council Rights: In countries like Germany, works councils have considerable rights under the Works Constitution Act (BetrVG), involving participatory decision-making regarding workplace conditions[1]. Employers must consult with works councils when implementing policies affecting employee work conditions, including smoking breaks.
- Employee Well-being: Employers should consider their employees' overall well-being. While enforcing a no-smoking break policy might improve productivity, it might adversely affect employee morale and satisfaction.
- Alternative Policies: Instead of outright banning smoking breaks, employers may provide alternative breaks to ensure fairness and equity for all employees.
- Health and Safety: Balancing smoking policies with health and safety regulations is crucial. Employers should ensure that smoking zones are safe and do not pose health risks to other employees.
- Implementation Strategies: Engage with employee representatives or works councils right from the outset, communicate the reasons behind the policy, and be ready to address concerns from employees who think the policy is unfair or burdensome.
- Given the health protection and fire safety concerns, employers may limit smoking in specific areas, zones, or even the entire workplace premises during work hours.
- To enrich employee well-being and comply with health and safety regulations, employers might consider providing alternative breaks for smokers instead of banning smoking entirely.
