Steven L. Brenneman, Teri F. Thompson, Elizabeth A. Ward, Editors
Ford & Harrison LLP

Vol. 18, No. 8
March 2008

EMPLOYEE BREAKS

The hazy future of smoke breaks in Illinois

In our August 2007 issue, we reported on the new Illinois state law that bans smoking in the workplace (see "Smoke out," pg. 8). The Smoke-Free Illinois Act, which became effective January 1, bans smoking in a "place of employment." A "place of employment" is defined as "any area under the control of a public or private employer that employees are required to enter, leave, or pass through during the course of employment," including areas within 15 feet of an entrance, exit, windows that open, and ventilation intakes. You also have the green light to designate open areas and outdoor areas, such as parking lots, as no-smoking areas so long as no-smoking signs are conspicuously posted.

Because of the Illinois Right to Privacy in the Workplace Act, you're still prohibited from refusing to hire, discharging, or otherwise disadvantaging an employee's terms, conditions, or privileges of employment because he uses lawful products (such as tobacco or alcohol) off your premises during nonworking hours.

Give me a break

In Illinois, an employee who works seven and a half continuous hours or longer is entitled to at least a 20-minute meal period beginning no later than five hours after the start of the work period. In addition, employers, at their discretion, may set policies establishing paid or unpaid break times for employees during the workday. When break time arrives, what's a smoker to do?

Under the new law, restrooms and break rooms are off limits for smoking. At a minimum, before lighting up, a smoker will need to go outside and walk at least 15 feet from an entrance, an exit, windows that open, or ventilation intakes. And, unless the employee is also a sprinter, a 15-or 20-minute time constraint might prevent her from taking a smoke break at all if the employer posts "no-smoking" signs in outdoor areas such as parking lots.

A healthy alternative?

If you designate nonsmoking areas beyond the 15-foot minimum, a smoker may be left with few options (whether that's good or bad is a matter of opinion). The employee could cut back or give up smoking altogether. Or, to get a cigarette in at break time, he may need to move (and puff) quicker to get his fix.

Copyright 2008 M. Lee Smith Publishers LLC

ILLINOIS EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Illinois employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.