It’s a common frustration for employers: Some workers feel a strong need to break away from work a few – or several – times a day to get their nicotine fix. Other employees just feel a strong need to break away from work. If an employer allows smokers short cigarette breaks at various times through the workday, should nonsmoking employees get the same perk? 
Recently, a group of attorneys specializing in workplace issues took on the question. An employer’s policy allowed up to three short breaks a day for smokers without allowing the same time off task for nonsmokers. That prompted a few vocal nonsmoking employees to insist that they also have the same right to a break.
The employer wanted to know if denying smoke breaks to nonsmokers presented a legal concern. The attorneys advised that discord over the breaks is usually more of a morale issue than a legal problem.
“For most industries and employers, there isn’t a rule that mandates breaks,” Jo Ellen Whitney, an attorney with the Davis Brown Law Firm in Des Moines, in Iowa says. “Because of the generally accepted wisdom fostered in books, movies, and television shows, many employees believe that everyone is entitled to a minimum of two coffee breaks a day.”
But that’s not true in most cases, Whitney says, since federal wage and hour laws “focus on paying employees for time worked instead of mandating specific types of breaks.”
Who said life was fair?
Employers need to exercise care, though. “It is certainly possible that nonsmoking employees could argue that favoritism took place or that the breaks had a disparate impact on a protected group (for example, if all the smokers were men and all the nonsmokers were women),” Whitney says, adding that many employers, including hospitals and universities, have banned smoking on the premises to avoid the issue of smoke breaks entirely.
Caren Stanley, an attorney with the Vogel Law Firm in Fargo, North Dakota, agrees that smoke breaks can cause conflict. “Smoking can be a pretty touchy subject as it is, but when it comes to the workplace, things get a little more dicey: Smokers get breaks to satisfy their habit, and nonsmokers don’t. Fair? Nope. But it’s just the way life is, right? Not necessarily,” she says.
Stanley says generally the law leaves it up to employers to decide whether breaks will be granted, the reasons for breaks, and the parameters. “Many employers offer employees 15-minute breaks in the morning and afternoon and a 30- to 60-minute lunch break during an eight-hour shift,” she says. “Those breaks offer ample opportunities for smokers to get their fix without taking extra break time beyond what nonsmokers get.”
Benjamin W. Mounts, an attorney with Steptoe & Johnson PLLC in Charleston, in West Virginia, says that although it is lawful to provide preferential breaks to smoking employees, it may not be a good idea.
“In recent years, studies have shown that smoke breaks are costly,” Mounts says. “Moreover, you may hurt morale and/or create a schism between your employees if you provide preferential breaks to smoking employees. Thus, the better business decision may be to nix the smoke breaks altogether or provide all employees with up to three short breaks per day.”
Laws on breaks and smoking on the job
Although federal law doesn’t require breaks for most employees, legal requirements still have to be taken into account. The federal Fair Labor Standards Act doesn’t require breaks—even meal breaks—but it does specify that if an employer provides rest breaks shorter than 20 minutes, the breaks must be included in work time. Also, for breaks to be unpaid, the employee must be relieved of all work duties.
Some states and local governments do have break requirements. For example, many states require a duty-free meal break during shifts of a certain length for all workers and others require such breaks just for minors in the workforce. Some states require employers to allow breaks for employees needing to express breast milk.
Also, many states and local governments require smoke-free workplaces. Other states that may require or allow smoke-free workplaces also have laws prohibiting employers from discriminating against employees who smoke off the job.