Smoking breaks at work – a right or a tolerance?

In a context where the WHO promotes a smoke-free world, the workplace faces a practical dilemma: is the smoking break a right, a tolerance… or a privilege? Between employer obligations and personal needs, the law remains silent.

In light of WHO initiatives aimed at discouraging the use of tobacco in any form and urging individuals, the public, and governments to adopt measures that promote a smoke-free lifestyle, it is somewhat expected that questions would arise within the scope of labour relations.

While these initiatives are not objectionable and have served as the basis for legislative responses such as the general prohibition of smoking in all workplaces, in the labour context — despite growing awareness of such restrictions — smoking workers have sought answers to their “need”: are smoking breaks foreseen in labour law, or are they a privilege granted to those who are “dependent”?

Let us begin with the most relevant aspect: the Labour Code does not mention smoking breaks at any point. On the other hand, the same legal framework also does not prohibit the worker from smoking during working hours.

Accordingly, it is important to distinguish between two concepts defined in labour law: rest breaks and pauses. The former, of mandatory nature, is governed by Article 213 of the Labour Code, and any violation by the employer constitutes a serious administrative offense. In the latter case, we move from a legal obligation to the realm of good sense or reasonableness, while still recognising it as a duty. More precisely, while work pauses are not explicitly covered, labour law states that the employer should observe the principle of adapting work to the individual, in order to reduce monotonous or repetitive tasks depending on the type of activity — namely through breaks during work.

However, the idea that work breaks are a duty to be observed by the employer does not necessarily equate to recognising the smoking break as a right of the smoking worker.

Nonetheless, assuming that breaks are permitted by the employer, there is nothing to prevent the worker from using them as they see fit — even if it involves satisfying a tobacco habit. At the same time, these authorised breaks will always be considered as working time, preventing any penalties for the worker. In fact, this is exactly what stems from labour law within the scope of “working time” regulations, where occasional interruptions of the daily working period are allowed to satisfy the worker’s urgent personal needs. Therefore, with the employer’s consent, the act of smoking (if brief and occasional) can be framed as a personal need.

It may also be reasonable to say that, for the smoking worker, the break to satisfy the need or addiction to tobacco may serve as a coping mechanism for stress and a means of reducing the risk of work overload, possibly acting as a stimulus for reconciling professional activity and productivity.

On the other hand, it is fair to affirm that reasonableness must come from both sides. In other words, smoking breaks may be authorised, but the worker should not misuse them in a way that compromises productivity or even the work environment.

In this regard, granting breaks to smoking workers may lead to demands for equal treatment — that is, if smoking breaks are permitted, then non-smokers also gain the right to “micro-breaks.”

In short, we can conclude that there is no legal right to smoke during work, nor is it permitted to smoke in the workplace due to specific health and safety regulations. However, in practice, it is common for companies to tolerate short smoking breaks as long as they do not impact productivity or the (literal) work environment. On the other hand, some companies deduct this time from the working hours, particularly when the breaks are frequent or lengthy. Through widespread, fair, and balanced practice, short breaks are often granted to all workers — smokers and non-smokers alike — allowing them to meet their personal needs.

WHO's initiatives serve a clear purpose: to raise awareness and mitigate the harm caused by smoking. From a more detailed and workplace-focused perspective, it is safe to acknowledge the existence of a general prohibition of this practice, and not unfounded to say that smoking can indeed affect productivity and workplace dynamics.