Help Wanted: Smoking breaks during work hours

Employers have great leeway in dealing with smoking Employers have great leeway in dealing with smoking breaks, even if they have to accommodate a worker addicted to nicotine. Photo Credit: iStock

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Carrie Mason-Draffen Newsday columnist Carrie Mason Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues. ...

DEAR CARRIE: I own a diner. Do I have to give cigarette breaks to employees who smoke? I am not a smoker and don't want to discriminate against smokers. But the smoking problem is getting out of hand. During the lunch shift, some of the wait staff is outside smoking and texting when they should be working. Can I legally stop them from taking these unauthorized breaks? -- Butting In

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DEAR BUTTING IN: You have a lot of leeway in dealing with the problem, even if you wind up having to accommodate the smokers who are considered disabled because of their nicotine addiction.

While most nicotine addicts would not be considered disabled under federal law, they could be considered disabled under New York State or New York City laws and entitled to accommodations, said employment attorney Richard Kass, a partner at Bond, Schoeneck & King in Manhattan.

Still, breaks aren't the only way to provide accommodations for the addicted smokers.

"Even if a smoker could prove that she needs a periodic fix of nicotine in order to perform her duties," Kass said, "there are ways of supplying that fix that are less disruptive to the workplace than providing smoking breaks."

For example, the problem might be solved with a nicotine patch, despite the employee's preference for a break, he said.

"A disabled employee is not entitled to choose any accommodation she wants," Kass said. "She is only entitled to a reasonable accommodation that permits her to perform her duties."

If employees with a nicotine addiction insist on extra breaks because of their doctors' orders, you can still push back.

"If any employees produce medical documentation that they are so addicted to smoking that they need additional breaks," Kass said, "the diner should engage in a dialogue with the employees and their doctors to determine whether another kind of accommodation may work, such as nicotine patches or solo, three-minute breaks with no cellphones allowed."

But with good reason you may not get many such doctor notes, he said.

"Most doctors would probably be reluctant to sign notes that would make them accomplices to their patients' smoking habits," he said.

Even if the smokers aren't considered disabled, employers in New York cannot discriminate against employees because they smoke, Kass said.

That simply means that smokers are entitled to the same breaks that nonsmokers get, including the state-mandated, 30-minute uninterrupted lunch break for employees working more than six hours a day. But here's more leeway for you: State law doesn't require you to give employees any other breaks. Since your goal is to limit those breaks, you need to craft a policy to that effect.

"The diner should announce a rule limiting the mid-shift breaks," Kass said.

And spell out what infringements to that rule will result in a dismissal.

By the way, while you don't have to pay employees for uninterrupted lunch breaks, you cannot legally dock their pay for any extra, shorter breaks of up to 20 minutes.

DEAR CARRIE:  We have a nonexempt employee who works two days a week, or fewer than 15 hours a week. If we are closed for a holiday on a day that he would normally work, do we have to pay him for that day? -- Paid Day?

DEAR PAID DAY: Since he is nonexempt, which generally means hourly, by law you don't have to pay him for the hours he doesn't work, for whatever reason. So whether he is paid or not for a day when you close is up to you. Just make sure you announce your benefits policy in advance to employees, as state law requires employers to do.

For more on state law and breaks go to http://bit.ly/16qTgPy;for more on what federal laws define as work go to http://1.usa.gov/M6EBiy.

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