Smoking at work – can an employer ban it?
Smoking at work is quite a controversial topic. More and more employers are looking for non-smoking employees. Can smoking at work be banned by the employer? How is smoking regulated by the Labour Code? What breaks are regulated by the Labour Code? Where is there a total ban on smoking at work? Can you get fined for smoking at work?
- Smoking in the workplace and the Labour Code
- Which employee breaks are regulated by the Labour Code?
- Additional breaks at work
- Where is there a total ban on smoking at work?
- Can smoking be banned at work?
- What is the penalty for smoking in the workplace?
- Who can impose a penalty on an employee for smoking?
Smoking in the workplace and the Labour Code
There are no explicit provisions in the Labour Code that regulate cigarette breaks at work. Therefore, this topic can be a source of some confusion. Additional breaks for smokers are unfair to those who do not have this habit. It is important to know that no law mentions additional ‘smoke breaks’. This means that an employee has no statutory right to have such a break. However, the employer can make individual decisions and allow employees to increase their breaks at the workplace.
Importantly, the Labour Code regulates mandatory breaks that everyone is entitled to. It is a rest time that can be used in any way one wishes.
What employee breaks are regulated by the Labour Code?
Breaks during working time are very important for the balance between health and work. The proper granting of breaks has a positive impact on the overall well-being of employees, their productivity and their willingness to work. What are the rules for giving breaks in the workplace?
For daily working hours, the law mandates that an employee must be given a 15-minute break when working for at least six hours. This time is by agreement and may be more depending on the employer’s decision.
Those who work more than 9 hours are entitled to an additional 15-minute break. If working more than 16 hours, the employee is entitled to another 15-minute break. These breaks always count as working time.
The employer cannot order employees what to do during their break. They can therefore take their time to have a cigarette during this time, if there is an opportunity to do so.
Additional breaks at work
There is a provision in the rules given by the Code that breaks must take place during work, not before or after it. Therefore, you cannot leave early by 15 minutes if you have not used your break during the day. An employer may introduce a longer break, known as a lunch break, in his establishment, which is unpaid, i.e. it does not count as working time. It can last up to 60 minutes. During this time, the employee can eat lunch, smoke a cigarette, go out to the shop or run his or her personal errands.
Another provision introduced by the Ordinance of the Minister of Labour and Social Policy is that the employer must provide employees with a five-minute break after each hour of work if it consists of sitting at a desk with a computer. These breaks cannot be accumulated together. However, the rules do not specify what the break can look like, so they can use it for a cigarette.
Where is there a total ban on smoking at work?
There are general rules governing where you cannot smoke. These are mainly public places, which can also be someone’s place of work. According to Article 5(1) of the Act of 9 November 1995 on health protection against the consequences of tobacco and tobacco products (i.e. Journal of Laws 2023, item 700, as amended):
Smoking of tobacco products, including novelty tobacco products, and smoking of electronic cigarettes shall be prohibited, subject to Art. 5a:
- inside medical institutions and in the premises of other institutions where health services are provided,
- within premises of educational establishments in accordance with the regulations governing the educational system, and of bodies providing social assistance services,
- within university premises,
- on the premises of cultural and leisure facilities for public use,
- on the premises of catering and entertainment establishments,
- on public transport premises and facilities serving the public,
- at public transport stops,
- on the premises of sports facilities
- in areas open to the public for children’s play,
- in general in areas of public use.
Any owner or manager of the above premises should signpost the smoking ban in force. This should be displayed in a conspicuous place, using graphics or words. It may also designate areas where smoking is permitted, if these are, for example, individual rooms in premises serving residential purposes. A smoking room may be designated:
- in nursing homes or retirement homes,
- in 24-hour psychiatric wards, except in maximum security wards,
- on university premises,
- in hotels,
- travel facilities,
- business premises,
- in catering and entertainment establishments.
Can smoking be banned at work?
An employer can set rules about smoking in the workplace. He can, of course, prohibit them. If it appears in the rules that smoking is prohibited on the premises, then the employee must comply. It is then necessary to mark the areas where smoking is prohibited. The no-smoking policy must be communicated to the employee at the start of their work. Note that this also applies to the ban on e-cigarettes, which are still tobacco products.
The ban on smoking at work may even apply to the entire premises. A person who breaks it is then in breach of health and safety (occupational health and safety) regulations, for which there is a penalty.
What is the penalty for smoking in the workplace?
In the event of a total smoking ban, the owner or manager must mark the workplace with a smoking room and smoking areas. If he or she fails to do so, he or she is liable to a fine of up to £2,000. In the case of e-cigarettes, up to PLN 500.
If an employee breaks the smoking ban, there are also penalties for smoking cigarettes. Depending on the location, he or she may even get a disciplinary dismissal. The employer has the option to give a reprimand for smoking cigarettes and to impose a financial penalty if it is a breach of health and safety regulations.
The financial penalty cannot be more than one day’s salary of the employee. It cannot be assigned after three months of the situation.
Who can fine an employee for smoking?
A fine for a violation of the smoking ban can be ordered by the relevant services or the employer himself. He himself can report the matter to the police or the municipal police. They can assign a fine of up to PLN 500 to an employee for breaking the ban on smoking cigarettes in a public place.
It is worth noting that the topic of smoking in the workplace is still a very shaky issue that causes a lot of misunderstandings. The bottom line is that if your employer communicates to you at the outset that there is a total ban on smoking in the company, then you need to comply. Otherwise you could be penalised. It is important to note that the smoking ban for employees does not come directly from the Labour Code, but there are specific places mentioned where this activity is prohibited. The employer is obliged to ensure safe working conditions, so in places where fire is easy to occur, one has to comply with the rules.