How far away are employees supposed to stand while smoking outside of a restaurant entrance?

UPDATED: Oct 1, 2022

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How far away are employees supposed to stand while smoking outside of a restaurant entrance?

I work at a small family-owned restaurant and both of our only cooks are smokers who frequently take breaks to sit outside and smoke. The door to the kitchen the steps where they smoke is only a good 3-8 feet away from the front entrance to our restaurant. Often times the kitchen itself reeks of cigarettes and sometimes if

the front door is open for too long, the entrance itself smells as well. I have told my employer that they should stand further away to smoke so it doesn’t hurt business or my lungs but he says that they are fine as long as they aren’t inside the restaurant. I can’t possibly believe that there’s no law regarding a required distance from the restaurant’s entrance. My research regarding NJ law has led me to no answer.

Asked on June 5, 2019 under Employment Labor Law, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

The short answer is it doesn't matter what the law does or doesn not say: the employer (the restaurant) can tell them to stand as far away as it likes, since employment is "employment at will" in this country (unless they have written contracts guarantying their employment, which is unlikely). Among other things, employment at will means the employer sets rules at and for work--and those rules can includes going a minimum distance away before smoking. Employees who violate those rules can be terminated (or anything less than terminated: pay cut, suspended, hours reduced, etc.). So if you want your employees to stand further away, tell them to do so on risk of being fired if they won't.

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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