my employee says I have to give her longer breaks because she’s a smoker

This post was written by Alison Green and published on Ask a Manager.

A reader writes:

I own/manage a business, let’s say a retail heath care equipment supply company that is located in a larger health care campus. I have multiple employees, and for a six-hour shift they get two 15-minute breaks. It isn’t intense or overly physically exhausting work, but I realize it is nice to step away for a few minutes.

No problems until a few weeks ago when I hired “Deleana.” She looked great on paper so I hired her. Come to find out she is a smoker. Recently we had a meeting about her ongoing tardiness from breaks and the possibility of disciplinary action, up to and including termination. She then said that I was violating her “smoker’s rights” because she didn’t have enough time to get to her car, have a relaxing cigarette, and make it back in time as the campus is a non-smoking area and she needs to walk a block (or more) to where she can park and smoke. I told her that smoker’s rights really don’t exist and she knew of the campus’ policy as she had to pass multiple signs when she came in for the job interview. So no, she wasn’t going to get an extended break time.

Today she surprised me with saying I am not accommodating her physical disabilities (she can’t walk fast enough to her car apparently to get a cigarette finished) and she won’t say what her disabilities are, nor does she (according to her) need to tell me. She said will be visiting her doctor to get a note saying I need to accommodate her disability by giving her longer breaks so she can smoke.

Is this a thing? Can somebody require an accommodation just so an employee has time to smoke a cigarette? A quick Google search on work breaks shows that I may not even need to give breaks which would solve the problem, but would be unfair to the other employees.

Haha, no.

Smoking is not considered a disability under the Americans with Disabilities Act (ADA), nor is it protected under that law.

Interestingly, when the ADA was being drafted, the tobacco lobby did try to get smoking included in the definition of “disability.” Since they were simultaneously trying to maintain that smoking wasn’t addictive, they tried to get it covered as a “perceived disability” rather than an actual one. But they didn’t succeed, and smoking is not covered under the law.

There are 29 states that prohibit employers from discriminating against smokers — meaning that in those states, you can’t refuse to hire a smoker or fire someone for smoking, although some of those states have exceptions for nonprofits and the health care industry. But even if those states, you don’t need to give smokers extra breaks or extra long breaks, and you can fire smokers for exceeding their allowed breaks.

Tell Deleana you’ll be continuing to hold her to the same break rules you hold everyone else to … and I would begin preparing to fire her, since if it’s not over this it’s almost certainly going to need to be over something else. (Although personally, I would be tempted to wait for that note, just for the entertainment value of watching someone try to get a doctor’s note requiring them to smoke.)