Smokers and Workplace Discrimination

Anyone who was alive 20 or 30 years ago can probably recall how common it was to see people smoking cigarettes and cigars in contexts, physical spaces and situations that would seem totally foreign to many younger people.

With the rise of anti-smoking campaigns, the growing awareness around the science of first- and second-hand smoke and a better understanding of the health and environmental issues with smoking, the practice has become harder to condone in public spaces. Some smokers complain of having a hard time finding places where they can smoke without being in violation of laws or policies. But does this amount to discrimination against smokers? Is workplace discrimination against smokers legal?

In New York, the law is actually very clear about this. It is unlawful to fire, decline to hire or otherwise discriminate against someone based on the employee’s legal use of tobacco and other substances before or after work hours and outside the employer’s premises. In other words, an employee is perfectly welcome to smoke cigarettes and other legal tobacco products outside of the workplace without fear of reprisal from his or her employer.

Of course, conflict between smokers and employers seldom arises out of off-the-clock behavior. More often, there is some disagreement over policies related to smoking during the workday. In these cases, the law is also clear. New York workplaces are smoke-free, and employers are not required to provide a smoking area for employers. Additionally, the law doesn’t provide for smoke breaks — employees can smoke during their 30-minute mandatory meal break, but not in the workplace or in the vicinity of posted no-smoking signs.

If you believe you have been subjected to employment discrimination based on your status as a smoker, contact a knowledgeable New York City labor law attorney with the Derek T. Smith Law Group in Manhattan.

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