(Last Updated On: 05/06/2017)

What bothers you can be a necessity for the others; smoking in the workplace can be a complicated matter. Our career portal provides information on the regulations, rights, and obligations for employees and employers in this matter under the employment law.

Content:
Smoking is prohibited in the workplace
Smoking is a private matter
Employers can make arrangements with employees
No accident insurance during the smoking break

Smoking is prohibited in the workplace
As a rule, in USA and many European countries, it is not allowed to smoke directly at the workplace, since other employees have the right to a so-called smoke-free workplace. In USA, currently, there is no law that bans smoking in offices in all states, though.

Non-smokers would have to be separately protected in this respect due to the occupational safety regulations and the legal situation. Smoking rooms may only be available in very limited ways. Main rule here is to Not interfere with the non-smokers.

A legal right to a smoking room or a smoking corner is not provided for in labor law. Likewise, smokers have a right to cigarette breaks, since the breaks laid down in accordance with the law on employment are, in principle, intended for recreation and thus for health protection. They are therefore not planned as smoking breaks. The employer even has the option to ban smoking on the work premises in accordance with the domestic law.

Smoking is a private matter
Smoking during working hours is considered as so-called privacy-matter. It is to be treated just like a Christmas shopping during working hours. It is to be treated in the same way as for example Christmas shopping during working hours. It is also permissible in the labor law that workers must be stamped out of the existing working time registration system for the period of smoking, as there is no payment entitlement to the remuneration of the work for smoking breaks.

However, employers may, of course, in accordance with the law (e.g. with the employment-council or by an operating agreement) define the handling of smoking breaks, their specifications, and uniform regulations.

However, the employer always has the option of completely eliminating a smoking break within one day. The employer does not have adequate entitlements in favor of the employee, even in the case of long-term toleration of smoking at the workplace.

Employers can make arrangements with employees
However, a works council may have the possibility of thwarting a complete ban through the so-called co-determination right.  As a rule, the employee cannot be dismissed if he or she violates an appropriate smoking ban or does not stamp out of the working-hours for a smoking pause. In this case, a warning is generally required. Only when this happens repeatedly and considerable periods accumulate, within which the employee smokes and no work is done, an immediate termination is possible.

No accident insurance during the smoking break
By the way, the accident insurance does not take effect during the smoking period. This is because smoking is a purely personal matter and has no relation to professional activity. Therefore, an accident is not covered by the accident insurance during smoking breaks (for example, a staircase fall.)

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