Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

This week, word came down that several Hartford-area companies were implementing a ban on smoking anywhere on company premises. This means outside areas on the campuses of these businesses, and the parking lots as well.  Previously, employees could smoke in designated areas outside various buildings. 

Yesterday, Bristol started considering implementing a ban on smoking on public streets as well. The Hartford Courant reported on the story here this morning (which includes a short quote from me at the end of the article. 

Clearly, the trend in Connecticut is to expand the existing restrictions on smoking to areas that have not previously been restricted.

But what is the law on smoking in the workplace?

Back in July, I covered much of this and discussed the fact that while an employer could ban smoking on company premises, it could not prohibit smoking by an employee "outside the course of employment".  For practical purposes, that means that the truck driver can't smoke while working, but is free to do so at home.

This so-called "smoker's rights" law is spelled out in  Conn. Gen. Stat. 31-40s and specifies that employers are prohibited from banning smoking outside work hours (though banning smoking on company premises IS allowed, even if the employee isn't working.) Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.   Employers, however, have broad authority to ban smoking at the workplaces and on their premises entirely, which is the step that several area businesses have now implemented under Conn. Gen. Stat. 31-40q. 

As more and more employers are devising ways to ensure that their employees are healthy, it would be wise for the legislature to review this law again. Perhaps the scope is just right, perhaps not. But until this rule is reviewed and eliminated, employers and local communities may be restricted in what further steps they can take to implement wellness programs and other restrictions.

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There's been a lot of talk of late of a "trend" beginning where employers are taking stock of employees health habits, particularly smoking.  Some employers are even considering a "smoke screen", per this story and this followup as well.   Some other background on employers and smoking policies can be found here, and here.

While employers have the statutory right to control and limit smoking in the workplace, Connecticut employers should be mindful of a state law that restricts an employer's ability to regulate smoking outside the workplace.

In fact, in Connecticut,  Conn. Gen. Stat. 31-40s is fairly clear about smokers' "rights" and that employers or agents of the employer cannot make no smoking a condition of employment.  Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part. 

Note that the restrictions also apply to compensation or other "privileges" of employment.  Thus,  employers in Connecticut that want to get on the "wellness" bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements on the state.

As always, getting legal advice to specific issues like regulating smoking outside the workplace is the best policy to avoid liability in the future.

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