YCST Partner William W. Bowser posted earlier about the controversy over employees who smoke at Whirlpool, where 38 employees have been suspended after caught smoking. We often get questions from Delaware employers about what they can and cannot do to respond to the various effects of employees who smoke.
In this series of posts, we'll address some of the most common questions Delaware businesses have about smokers' rights.
The most often asked question is whether an employer has to facilitate a smoker's habit by giving smoking breaks. The answer is no. There is no state or federal law that requires smoking breaks.
Delaware employers must, however, provide most employees with a meal break of at least 30 consecutive minutes if the employee is scheduled to work seven-and-one-half or more hours per day. Meal breaks must be given sometime after the first two hours of work and before the last two hours of work in a workday. Of course, smokers could use this meal break to smoke.
If an employer chooses to allow its employees to take smoking breaks, it probably has to pay them for the time. According to an opinion letter issued by the Wage and Hour Division of the U.S. Department of Labor, short smoke breaks are to be included in the calculation of an employee's "hours worked." Specifically, smoke breaks of 3-4 minutes at a time, the total of which do not exceed 15 minutes a day, may not be excluded from "hours worked" under the Fair Labor Standards Act.
Thus, the ability to smoke during work hours is largely under an employer's control. Smoking breaks aren't required; but, if they are allowed, the employees must be compensated for that time.
Other posts on Smoking in the Workplace: