The consensus of health professionals over the last few decades is that second-hand tobacco smoke is indeed a health hazard. However, federal law usually does not require that employers provide smoke-free workplaces for their workers. That said, counties and cities can choose to regulate smoking laws in the workplace in California. Here, we want to delve a little bit further into the rules surrounding smoking in the workplace so that you have an understanding of your rights as an employee.
There are only certain situations where an employer must eliminate smoking from its facilities, per federal regulation. For example, when we look at the Occupational Safety and Health Act, we can see that smoke-free workplaces may need to be provided in settings where there are industrial contaminants that could mix with the smoke and create extremely hazardous air quality that would violate workplace safety standards.
Many employers implement policies that relegate smokers to certain areas of facilities or even banning smoking altogether at the worksite. In addition, the Americans with Disabilities Act (ADA) could require employers to provide those who have disabilities that could be exasperated by tobacco smoke with special accommodations that would prevent them from exposure.
Over the last few decades, there has been significant activity at both state and local levels to enact laws creating smoke-free workplaces around the country. In California, the law says that an employer cannot permit smoking in any enclosed workspace, as this would affect nonsmokers. In this state, smoking can only be permitted in non-workspaces that are safe and free from hazards.
However, employers with five or fewer employees are allowed to permit smoking in any designated area if every employer present agrees and as long as there are no minors in the smoking area.
Smokers are protected under state law and cannot be discriminated against or wrongfully terminated because employers in California cannot discriminate against or discharge an employee for engaging in a lawful activity.
California law does not address whether or not employers should have policies about smoking in the workplace. However, city or county law may require employers to provide guidelines to employees regarding smoking activity.
There may be various reasons why a person may need an Orange County employment attorney when it comes to smoking policies in the workplace. First, if you believe that your employer has subjected you to unnecessary health risks due to their smoking policies, or lack thereof, you may have been subjected to an unsafe workplace or a hostile work environment. We strongly suggest that you speak to an attorney about your case to determine whether or not you have an employment law case.
If you are a smoker and feel that your employer has discriminated against you based on your smoking status, you may also have an employment law case against your employer. As we mentioned, smokers are protected under state law and cannot be terminated or discriminated against because of their smoking status, so long as they follow any smoking policy set forth by the company that is legal. A skilled employment law attorney can examine your case and help determine the best steps moving forward.