During a tough shift at work, many workers will step outside during the workday for a cigarette or vape break to collect their thoughts and try to manage the stress they have accumulated. Whether you work at a corporate office, a restaurant, or at a hospital, some workers may wonder if smoke breaks are required by law in California?
California Law About Smoke Breaks
California does not require employers to provide smoke breaks for their employees, but employees are entitled to certain rest breaks during a shift, and many workers can choose to use those breaks to smoke.
Under California Labor Code 226.7 and wage orders issued by the California Industrial Welfare Commission (IWC), most non-exempt employees are entitled to:
- One 10-minute paid rest break for every four hours worked (or major fraction thereof)
- Rest breaks should be provided in the middle of each work period when possible
- Rest breaks must be paid and uninterrupted
For example, if a worker’s shift is six hours long then they are entitled to at least one rest break, but if they are working a ten hour shift then they are entitled to two rest breaks.
Can Employers Ban Smoking During Breaks?
California employers can prohibit smoking during breaks, especially if the workplace has a strict smoke-free policy. Even if the employee is an avid smoker, employers are not required to provide separate or additional breaks specifically for smoking.
Additionally, California has strong workplace smoking restrictions under California Labor Code 6404.5, which generally prohibits smoking in enclosed workplaces. Employers may enforce policies such as:
- No smoking anywhere on company property
- Smoking only in designated outdoor areas
- No smoking during work hours
- Restrictions on vaping or electronic cigarettes
These policies are legal as long as they are applied consistently and do not discriminate against employees.
Can Employers Treat Smokers Differently Than Non-Smokers?
Generally, smokers are not considered a protected class under California employment law. This means employers can restrict smoking during work hours, require employees to clock out for extra smoke breaks, and even require smokers to take breaks at the same time as other employees.
However, employers cannot apply rest break policies in a discriminatory way based on protected characteristics such as race, gender, disability, or religion. By doing so, they are violating California and Federal law and can be held accountable for their actions.
What If My Employer Does Not Allow Rest Breaks?
Even though smoke breaks are not required, rest breaks are required by California law. If an employer refuses to provide legally required rest breaks, they may be violating California wage laws. Under California Labor Code §226.7, employers must pay a premium penalty of one hour of pay for each workday that a required rest break is not provided.
For example, if an employee works 8 hours without receiving a required rest break, the employer may owe one additional hour of pay. Any failure to provide proper breaks can also lead to wage and hour lawsuits, class action claims, and complaints to the state’s Labor Commissioner.
Are There Exceptions to California Break Laws?
Some employees are subject to different break rules depending on their job classification. Break requirements may vary for:
- Exempt employees
- Certain union workers
- Some healthcare workers
- Independent contractors
However, most hourly workers in California are covered by standard meal and rest break laws.
What Should Employees Do If Their Break Rights Are Violated?
If your employer is denying legally required rest breaks or forcing you to work through them, you may consult with an experienced wage and hour attorney to determine whether your employer has violated California wage laws and help you pursue compensation.
While California law does not require employers to provide smoke breaks, employees still have the right to paid rest periods during their shifts. At West Coast Employment Lawyers, our team of experienced attorneys can examine your claim and give you the legal guidance you need.
Contact our team today at (213) 927-3700 or fill out our online contact form for a free consultation to discuss your workplace rights.
