Law firm specialising in employment law
and social security law.
Law firm specialising in employment law
and social security law.
Smoking in the workplace is subject to strict regulations. Employers, as part of their health and safety obligations, must take action to limit the risk of being held liable.
What are the rules, and how do you manage a smoking ban in the workplace?
These are the questions we address in this article.
Since the introduction of the Evin law on January 10, 1991, a general principle has been that smoking is prohibited in places designated for collective use.
This ban was clearly extended to the workplace on February 1, 2007, when it came into effect for all enclosed and covered workplaces, “except where the company has designated smoking areas”.
In view of these provisions, smoking in the workplace will be subject to stricter regulations than alcohol consumptio.
Cigarette smoking is prohibited in all workplaces, whether for collective or individual use: it is forbidden to smoke in catering areas, reception areas, individual offices, meeting rooms and rest areas.
A fortiori, any consumption of illegal substances within the company is prohibited! (Cass soc; July 1, 2008, n°07-40.053).
More flexible rules for vaping!
While “conventional” cigarettes are strictly prohibited in the workplace, vaping is currently only prohibited in closed and covered areas for collective use (article L.3513-6 of the French Public Health Code). Decree no. 2017-633 of April 25, 2017 however, specifies that these places in the company are to be understood as open spaces and shared offices.
Consequence: it is still possible for employees to continue vaping in individual offices unless the company's internal regulations prohibit it.
What's more, the ban on vaping does not yet extend to places open to the public (article R.3513-2 of the French Public Health Code).
If the employer so wishes, he can set up a specific area for smokers on company premises.
In practice, these are enclosed rooms reserved exclusively for smoking.
However, this type of location is subject to strict regulations, particularly in terms of surface area and ventilation. Specific health and safety standards are set out inarticle R.3512-4 of the French Labor Code.
In terms of labor law, the employer should bear in mind that this installation project must be submitted for prior consultation with the CSE and the occupational physician (article R.3512-6 of the French Public Health Code).
Is the employer obliged to set up a “smoking area” in the company?
No. Employers are never obliged to set up a smoking area in the workplace. In the absence of a smoking area, employees will have to smoke in public places.
Employers, who have a safety obligation (article L.4121-1 of the French Labour Code), must take all preventive measures to ensure the health and safety of their employees (article L.4121-2 of the French Labour Code).
To this end, with regard to the ban on smoking in the workplace, he must :
This obligation applies to both tobacco consumption and passive smoking. .
Thus, an employee who complains that some of his colleagues continue to smoke in a shared office may go so far as to terminate his employment contract to the sole detriment of his employer (Cass soc.29 juin 2005, n°03-44.412).
Under criminal law, the employer is liable to a fine of up to 750 euros for failure to install signage. They may also be liable to a second-class fine for failure to display signs reminding them that vaping is prohibited (article R.3515-7 of the French Public Health Code).
In this context, an employee's violation of the company smoking ban must be punished, more or less severely depending on the seriousness of the offence and a number of factors such as the employee's seniority, the repetition of the behavior, the location and activity of the employee or the company.
In some cases, the sanction may even go as far as dismissal for gross misconduct.
In addition, the employee may be subject to penal sanctions. On the one hand, they are liable to a third-class fine for smoking on the premises (article R3515-2 of the French Public Health Code). Secondly, they may be liable to a second-class fine of 150 euros for vaping in the workplace (article R.3515-7 of the French Public Health Code).