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 fixed regulations on how smoking breaks must be handled. It is therefore basically up to the employer to decide which rules apply 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 them.
However, all employees have a basic right to rest breaks under the Working Hours Act. Employees working up to 9 hours are entitled to at least 30 minutes of rest. For over 9 hours, this time is increased to 45 minutes.
If these rest periods are not specifically defined, they can be used for smoking breaks, for example. After all, the rest periods or breaks can be freely arranged by the employees. Nobody 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 these days. Cigarettes must then 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 a lockable door to prevent the 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.
By law, 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 smoking 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 are not considered working time either. Nevertheless, they are paid as such, simply because the working time is not paused each time in the working time recording.
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. Smoking, on the other hand, only affects smokers.
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 does not spend time at the coffee machine. Similarly, there are many non-smokers who have nothing to do with the subject or have a completely different opinion on it.
In principle, you have to clock out for the smoking break. It 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 thinks that smoking breaks are not a problem, then so be it. If the employer stipulates that you have to clock out or even imposes a smoking ban, then employees must comply.
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 such as this that is not clearly defined, there should be clear rules within the company that are also set out in the contract. It is up to the employer to decide what these look like.
Conclusion
Smoking breaks are clearly breaks according to the law. As such, they must actually be recorded. 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. In the best case scenario, they involve the staff in such decisions. After all, there are also non-smokers who also want to feel represented.
