I own a small business with eight employees. I understand from a prior article that I can’t fire someone for smoking in the workplace. But can I do anything to address an employee who has a strong cigarette odor because she continuously takes smoking breaks outside? Several employees have complained to me about the smell.


Although your employees are likely complaining because they find the odor offensive, you should find out if the complaining employees are just annoyed, or if they may have a disability under the federal Americans with Disabilities Act (“ADA”) or California Fair Employment and Housing Act (“FEHA”). Courts have held that an employee may qualify as “disabled” if a workplace odor causes an allergy or asthma to become severe. If any of the complaining employees has such a disability that is aggravated by tobacco odor, and you don’t address the complaints, a court could find that you failed to reasonably accommodate any complaining employee’s disability. The best way to do this is to simply ask what it is about the smell that bothers them.

You can also view this situation like that of employees who wear strong fragrances or have body odor. Employers may have personal appearance policies stating that employees must observe good habits of grooming and personal hygiene. You can tell the employee that she may not be aware that she has a strong tobacco odor, but for the comfort of her co-workers and your customers, she needs to take steps to minimize the odor. You can suggest that she use a stronger detergent or a fabric freshener when washing her clothes, that she wash her hands frequently, chew gum or mints after smoking, use lightly scented lotion to mask the smell, change her jacket after smoking, and/or use a scented dryer sheet and pass it over her clothes and hair after taking a smoking break.

If this employee is non-exempt, you can also remind her that she is only entitled to a paid 10-minute break for every 4 hours worked or major fraction thereof. By frequently leaving the building to smoke, she is taking more breaks than she is entitled to and violating your policy.

Local ordinances may also help employers in controlling the smoking habits of employees. Salinas prohibits smoking in common work areas occupied by employees performing business functions, and in areas that share air space with other enclosed areas in which smoking is prohibited. Seaside specifies that an employer must try to reasonably accommodate non-smoking employees but if it cannot, the preferences of non-smoking employees shall prevail; however, it prohibits smoking restrictions in any area exterior to the building in which the establishment is located.

Monterey prohibits smoking in areas including enclosed places of employment, covered public parking areas, and “where any person or entity that either owns or exercises management and control over the property and has declared the area, where smoking would otherwise be allowed, to be a nonsmoking area and posts ‘No Smoking’ signs.” Therefore, if you are in Monterey, you could prohibit this employee from smoking outside the office if you own or exercise management and control over that area and post “No Smoking” signs, thereby reducing the amount of time spent smoking and, hopefully, the odor.
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