Employees Have a Right to Smoke (But Not At Work)

California Labor Code 96(k) establishes that an employee cannot be discharged for non-work-related lawful conduct. Section 96 states,

"The Labor Commissioner and his or her deputies andrepresentatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, . . . take assignments of:
(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises."

Employers often seek to limit an employee's tobacco use. The reasons are that tobacco smoke saturates the employee's body and clothing, permeating the surroundings and offending customers and co-workers.

Smoking is lawful. An employee can't be discharged for legal activities. The employer planning to terminate a smoker will have to have a work-related reason. For instance, the off-site smoking is affecting the workplace due to odor.

Many employers have a dress and grooming policy. As long as the policy does not violate religious beliefs or discriminate on the basis of national origin, or impinge on the employee's gender identity, these policies are generally legal. E.g. California Gov't Code 12949; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 (grooming policy must not be gender-based without bona fide reason); Kelley v. Johnson (1976) 425 U.S. 238 (police department may prohibit long hiar, mustache and sideburns); Jespersen v. Harrah's Operating Co. (9th Cir. 2006) 444 F.3d 1104 (female bartenders could be required to wear makeup to work where males were required to have short hair). A grooming policy requiring clean personal hygiene could be violated if the tobacco odor permeates the workplace.

If no such policy exists, the employer could give the employee a verbal warning and opportunity to clean up her act. If she still insists on coming to work smelling like an ashtray, she can be terminated for violating company policy.