Q: After a wage audit by the state Department of Labor, we were presented with a “bill” for failing to pay employees for 15-minute unpaid smoke breaks taken several times each day for the past two years. What was originally intended to be a quick five-minute break has evolved over time into at least 15 minutes per break, including socializing and walking to and from the smoking area. Rather than attempt the impossible and limit such breaks to five minutes, we conceded the time, but indicated it would be unpaid, which was readily accepted. Where did we go wrong?
A: The Labor Department is obligated to enforce the law as written, regardless of the parties’ intent or preference, which may be a violation requiring corrective enforcement action.
Federal regulations, which are generally followed by the state DOL, specify that for a work break to be unpaid, it must be at least 20 minutes. You cannot add up breaks shorter than 20 minutes and consider the total aggregate break time as unpaid.
For example, a 15-minute morning coffee, smoke, or bathroom break and a 15-minute afternoon break cannot be used to deduct 30 minutes from total work hours in the day.
The reality is that most employers continue to have some very skilled, hardworking employees who unfortunately persist in smoking.
But as much as it is truly an addiction, it is not deemed a medical disability that you are obligated to accommodate.
State law, in somewhat opposing provisions, requires that you prohibit smoking in any interior workspace but also prohibits discriminating against smokers who use tobacco products only during nonwork time offsite.
Since smokers are not legally entitled to smoke at work under any state or federal law, it would be permissible to prohibit smoking during work hours on company property, indoor and outdoor, leaving smokers to smoke before coming to work, during an offsite lunch break, or after work.
Not surprisingly, even with scheduled breaks and designated smoking areas, many employers struggle with smokers adding an extra break or two for a quick puff. And nonsmoking coworkers usually see it like management, feeling cheated for not taking as much break time as the smokers.
It’s up to you how aggressive and restrictive you want to be, but the law is in your favor if you set the standards and hold everyone to them consistently.
As you’ve seen, trying too hard to accommodate smokers can be hazardous to a company’s fiscal health.