BY: LISA R. WILSON

Although providing rest or meal breaks is not required under Federal law and the laws in most states, many employers do so anyway to comply with industry standards as set forth by the Department of Labor (DOL). Typically, industry-standard breaks allow for one, 5-15 minute break and one, 30-minute off-the-clock lunch break during an 8-hour workday. However, it has been argued that a smoking employee takes 2-4 smoke breaks per day, more or less depending on severity of habit, averaging 10-15 minutes at a time—and still clocks out for his or her official lunch break. Although most employees at some time have “overdrawn” on their lunches and allotted breaks; i.e. elongated internet surfing and personal phone calls, etc., workers who continuously take excessive, on-the-clock, discipline-free smoke breaks are causing a division within the American workplace, and are causing many non-smoking employees to see red.

Some smokers argue that smoke breaks are used as a time to reflect on work that has been completed and what still needs to get done, thus making them more productive than non-smokers. But a new study shows smokers have poorer-than-average work performance and productivity, and they also tend to call in sick more. A 2007 study of over 14,000 employees—conducted by Dr. Lundborg, an economist as well as physician—found smokers took an average of almost 11 more sick days than non-smokers. The number was adjusted to account for smokers’ tendency to work riskier jobs and have poorer overall health, bringing the difference to just below 8 days a year.

These days, employers nationwide are implementing smoke-free policies, or offering reimbursement for smoking cessation programs. Wal-Mart has introduced a voluntary program for its employees called the “personal sustainability project,” which counsels the company’s 1.3 million employees on the benefits of such things as energy efficiency and quitting cigarette smoking.

Here are some facts about smoking and the workplace, according to the American Lung Association:

• Employers that hire smokers bear indirect costs, including more employee absenteeism, productivity losses ($92 billion) and increased early retirement due to smoking-related illness.
• A study found that people who were exposed to smoke in the workplace were 17% more likely to develop lung cancer than those who were not exposed.
• Since 1999, nearly 70% of the U.S. workforce worked under a smoke-free policy. Workplace productivity was increased and absenteeism was decreased among former smokers compared with current smokers.

So what do you think? Should what is fair for some be fair for all? If smoking employees can take additional breaks throughout the day to “calm their nerves,” than should non-smoking workers have the same option, such as taking additional coffee breaks or every-other-hour walks around the block? From this worker’s perspective, I think all employees, smoking or not, should be treated equally—no butts about it.

It is important to note that unauthorized breaks, or unauthorized extension of breaks, may not be compensable time and that employment policies, collective bargaining agreements, or other arrangements addressing specific smoking breaks vary by company and by state.

For more information on your state’s laws for break-time allotment, visit the Department of Labor online. If you have questions about smoking and the workplace or workplace discrimination, contact a Lead Counsel Labor and Employment Attorney in your area today.