Can an employer force their employees to clock-out to smoke?
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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
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 8 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).
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