Can an employer force their employees to clock-out to smoke?

UPDATED: Sep 30, 2022

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Can an employer force their employees to clock-out to smoke?

My employer recently went to a tobacco free facility, so if a smoker wants to have a cigarette, they have to clock out and drive off the property. The breaks are regularly scheduled for all employees. However, non-smokers get paid whereas smokers who clock out don’t, not to mention the waste of gas from driving around. Is this legal?

Asked on June 29, 2016 under Employment Labor Law, Alabama


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

Yes, an employer can do this. The fact is that most employment is "at will". This means that a company can set the conditions of employment much as it sees fit. From a legal standpoint, not all employees need be treated the same unless their treatment constitues some form of legally actionable discrimination. So, for example, if their treatment was based on their being a member of a legally protected class (i.e. based on their race, religion, gender, disability age (over 40), etc.), then they would have legal rights. However, being a smoker is not considered to be a legally protected class. Also, an employer's action must not violate any applicable union/collective bargaining agreement or employment contract, which you did not indicate to be the case. Accordingly, a smoker can be required to clock out for a smoke break and leave the premises while non-smokers do not have to. As for paying for such time, a worker is only entitled to be paid for the time that they actully work. If an employer chooses to pay some for their breaks while not others, it is a discretionary benefit and thereby does not have to apply to all employees (based on the above exceptions).

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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