The topic of smoking is now omnipresent. What was commonplace in the 1970s and would not even have been enough for a discussion at the regulars’ table is now rightly discussed in depth. There are those who are against it, there are those who are for it, there are those who don’t care and then everything in between. Accordingly, the topic is also important in the workplace and especially in relation to working hours.
Smoking breaks and the law
There is no direct legal regulation for smoking breaks. Neither labor law nor the Working Hours Act contain any fixed rules on how smoking breaks should be handled. It is therefore basically up to the employer to decide which rules apply with regard to smoking in the company.
In principle, however, it can be stated that employees have no legal entitlement to smoking breaks. Employers therefore do not have to allow this.
However, all employees have a fundamental right to rest breaks under the Working Hours Act. Employees are entitled to at least 30 minutes’ rest if they work for up to 9 hours. For over 9 hours, this time increases to 45 minutes.
If these rest periods are not specifically defined, they can be used for smoking breaks, for example. The rest periods or breaks can ultimately be freely arranged by the employees. No one can dictate whether they smoke or not.
However, it is of course permissible to prohibit smoking in the company itself. This is also the case in most companies today. Then the cigarette must be smoked outside.
However, there are also companies that set up extra rooms for smokers where they can spend their smoking breaks. These are separate rooms with lockable doors to prevent smoke from entering the rest of the company.
Is smoking working time or a break?
The name says it all: smoking breaks are considered breaks and not working time. However, there are always discussions about this aspect and it is not as clearly regulated as described here.
Legally, a smoking break is a break. Above all, this means that the employer’s accident insurance does not apply during this time.
However, this also means that smokers have to clock in and out every time they take a smoke break. Such short breaks are actually subject to special regulations, such as those that apply to toilet breaks. These do not have to be treated as breaks, but do not count as working time either. Nevertheless, they are paid as such, simply because the working time is not paused in the working time recording every time.
Unlike going to the toilet, however, smoking is not a basic need. So here we quickly find ourselves in a dilemma: going to the toilet affects everyone. However, only smokers smoke.
A coffee and a cigarette
It’s a bit like drinking coffee. Talking to a colleague at the coffee machine is not working time. Nevertheless, it is usually recorded as such. But not everyone drinks coffee and therefore doesn’t spend time at the coffee machine. In the same way, there are many non-smokers who have nothing to do with the subject or have a completely different opinion on it.
The basic rule is that you have to clock out for the smoking break. This is officially a break and is not paid. However, it is up to the employer to decide how important this is to them. If he is of the opinion that smoking breaks are not a problem, then so be it. If the employer stipulates that smoking must be stamped out or even prohibits smoking, then employees must comply with this.
Employees who disregard the regulations must expect to receive a warning.
However, it should be clear what these regulations look like. Particularly in the case of an issue like this that is not clearly defined, there should be clear rules within the company that are also set out in the contract. The employer must decide what these look like.
Conclusion
Smoking breaks are clearly breaks according to the law. They must actually be recorded as such. There is no remuneration for breaks, so this time is not paid. However, employers can decide for themselves how strictly they enforce these regulations or whether they take a very relaxed approach to the issue. At best, they involve the staff in such decisions. Finally, there are also non-smokers who also want to feel represented.
