Smoking by Employees – What Are the Rules?

A couple of months ago, I had a call on the Free Legal Service Program that I run for the Independent Insurance Agents of Georgia from an agency owner who had recently hired an employee who decided after being hired to start smoking cigarettes.  The agency was a small one and none of its other employees smoked.  The other employees objected to the smell of tobacco on the newly hired employee, who would smoke before coming to work and on her lunch break.  The owner wanted to know what he could do.

In 2005, Georgia adopted the Georgia Smoke Free Air Act, which with a few exceptions banned the smoking of any tobacco product in any enclosed space, whether publicly or privately owned other than a personal residence.  Employers are required by the Act to tell every potential new employee of this ban when they submit an application for employment.  The Act does allow employers to create designated smoking areas for their employees that meet certain specified requirements, the most costly of which is the maintenance of an air handling system for the smoking area that is independent from the main air handling system that serves all other areas of the building and that expels all air within the smoking area directly to the outside.  No air from the smoking area can be recirculated through or infiltrate other parts of the building and a sign must be posted at every entrance to the smoking area warning others that smoking is permitted in that area.

The Georgia Smoke Free Air Act of 2005 does not require an employer to create designated smoking areas and in fact, permits the prohibition on smoking to be extended to areas outside of buildings that are under the control of the owner of the building.   There is also nothing in the Act that prohibits an employer from firing an employee for smoking outside of the workplace.  In the absence of any such prohibition, given Georgia’s strong “at will” employment policy, it appears that the agency owner who contacted me would be within his rights to fire the newly hired employee for smoking outside of the workplace.

However, if a Georgia employer has 15 or more employees, they are subject to the federal employment discrimination laws that impose some limitations on the reasons for which an employee can be fired.  Those limitations do not include the smoking of tobacco, but they do include other characteristics that could be used by an employee who was fired for smoking to create problems for the employer.  In any event, employers who do not want to hire persons who smoke tobacco should make that fact clear to all potential new employees and let all current employees know that such conduct will result in termination of employment.  If there is no such clear policy, an employee who is terminated for that reason will most likely be eligible to collect unemployment compensation.  In addition, any such policy should be consistently enforced.  If it is not and the employer is subject to the federal employment discrimination laws, the risk of liability exposure under those laws will increase as inconsistent enforcement of workplace policies is one of the main causes of claims under those laws and makes defending such claims much more difficult.

Each agency owner must decide what type of workplace they want to have, as far as the smoking of tobacco products by their employees is concerned.  Once that decision is made, the owner should clearly communicate the policy to all their current employees and any potential new employees.  If the policy adversely affects any current employees, they should be given a reasonable amount of time to comply with the new policy and maybe even offered help to quit smoking, if the policy calls for the termination of employment of any employee who smokes tobacco products outside of the workplace.