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Are restaurants required to allow smoke breaks for staff?

employee on break outside of a restaurant
Photograph: Shutterstock

Question:

I was just told that I cannot take a cigarette break at work, even though it lasts less than five minutes. What are the laws?

– Mauricio Pomme, bartender, Arriba Arriba, New York City

Answer:

The world is becoming a much harsher place for smokers. When I was coming up in the industry, the whole kitchen took a cigarette break every 90 minutes or so until service started. I even pretended to smoke so I could chat with my colleagues and take a break.

While smoke breaks are a courtesy extended to restaurant workers and are still part of the culture in some restaurants and bars, I don’t know of any municipalities that specifically allow it. Breaks are not specified at the federal level (though there are some legal exceptions for accommodations for disabilities, nursing mothers, and so on). There are, however, state-by-state guidelines for breaks in many states and municipalities, often with additional provisions for minors. For example, in New York state, you are entitled to a “30-minute noonday period for employees who work shifts of more than six hours that extend over the noonday meal period,” and, “an additional 20 minutes between 5 p.m. and 7 p.m. for those employed on a shift starting before 11 a.m. and continuing after 7 p.m.” While you may not be allowed to smoke in or around the restaurant on your official break, that’s the only time you are officially entitled to a smoking break and can leave the premises to do so. According to federal law, breaks of 20 minutes or less must be compensated.

This is another example of where clear expectations are key. Employers should clearly spell out policies for smoke breaks in their manual. In addition to the labor aspect of your question, remember the guest services and food safety aspects. FOH staff in particular should be careful to freshen their breath after a smoke, and all employees should thoroughly wash their hands before returning to work.

As always, check with your attorney and restaurant association to make sure you are in compliance with the relevant regulations.

More details on allowable smoke breaks here.

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