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Discrimination of Smoker

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Does an employer have to provide their smoking employees a location to smoke? In recent past months, employees have been terminated for smoking within the premises, i.e., parking lot, inside one's car within the parking lot, etc..



I am not sure whether in CA or in any other state the private employer has to provide an area for smokers to use. That is a good question and hopefully one of the other attorneys or non-attorneys will know the answer.

My take on it is that the private employer is stating that said activity may never take place on their property at any time for any reason. I would argue that such a blanket policy is a denial of individual liberties. The reasoning is that tobacco and its use is a lawful product and activity, reardless of how politically incorrect it is, or how villified it is by Bill Clinton & gang.

Moreover, the employer is allowing its employees to park their cars on its property. Granted the use of the parking space is to allow the employee easier, quicker, and safer ingress and egree to the work area. Still, any tobacco use by an employee in his car on his time is a lawful and constitutionally protected act. That act is no different, constitutionally, than the employee listening to his radio (regardless of what station), or reading a book (regardless of what kind), etc. So the employer has no authority to ban certain constitutionally protected activities by its employees without showing a huge need for such and without the employees knowing consent to that denial.

Mark B. Replogle

Joan Gregg

I asked this same question (but no terminations occurred) before. I also had been thinking about constitutionality of such a blanket policy.

IAAL replied that employers have the right to represent an image to outsiders that shows no clusters of people smoking in a huddle (not part of my question) or in cars. (I'm in PA)

This is NOT in regard to my current workplace, but to my last, where visitors could walk on the property smoking but employees were banned from smoking completely--in cars parked on the property; certainly in the buildings; and on foot anywhere on the property.

Maybe you could ask IAAL?

Joan Gregg

I searched for PA laws archived on the 'net. In 1988 a law was passed prohibiting students from smoking on or in school property. This law also permitted school district superintendents to DESIGNATE SMOKING AREAS FOR STAFF. At that time, no mention was made of prohibition of staff from smoking on school grounds.


1. More recent laws may have superceded this one.
2. I cannot find PA statutes relating to private property and smoking.

Obviously, I am not a lawyer. Still like Repogle's answer.

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