Are employers allowed to issue a general ban on smoking in all company premises?
This question was brought before the Federal Labor Court in the last instance because an employer had concluded a works agreement with the works council that provided for a general ban on smoking on the entire premises and in all buildings of the employer. This company agreement was accompanied by a series of smoking cessation measures, such as stop smoking classes, nicotine patches, nicotine gum and acupuncture treatments at the employer's expense. The plaintiff was of the opinion that the general smoking ban represents a disproportionate infringement of his right to privacy and that it is not necessary to this extent, either for the protection of colleagues or for other operational reasons. In the plaintiff's opinion, it is not the employer's responsibility to ensure his health. The employer was of the opinion that not only the specific health risk to other employees justifies this prohibition, but also the fact that they are annoyed by the smell. Furthermore, this prohibition also protects the health of the smokers. The plaintiff's demand for a smoking room is unjustified; after all, an employee cannot demand the provision of a break room for exercising sporting activities. Nor can the plaintiff rely on the fact that there has been no smoking ban in the company for years.
The Federal Labor Court essentially followed the employer's argumentation. It ruled that a smoking ban may be imposed if it is suitable, necessary and reasonable, taking into account the freedom of smokers, to achieve the desired purpose. The imposition of a smoking ban is suitable to ensure the health protection of non-smokers as well as protection against odor nuisance. The measure is also necessary because it is not apparent how comparable protection of non-smokers could be achieved. However, when weighing up the interests, it should be taken into account that smoking in certain areas of the open-air grounds does not significantly affect non-smokers and that a smoking ban on open-air grounds is therefore inappropriate and thus ineffective.
The ban on smoking in open-air areas cannot be justified either by the fact that it is intended to make it easier for smokers to give up smoking. In this respect, the employer does not have the right to interfere further in the private lives of employees than is necessary to protect other employees.
The employer can therefore issue a smoking ban in all company buildings for the protection of non-smokers. However, he may only do so in open spaces if there are special reasons other than health protection (e.g. risk of explosion in a tank farm). If there is a works council in the company, the works council has a right to a say in this matter in accordance with § 87, para. 1, no. 1 of the German Works Constitution Act (Betriebsverfassungsgesetz, BetrVG), so that the smoking ban must be regulated by a works agreement.
The employer is not required to grant a transitional period for smokers to quit. If an employee does not comply with the smoking ban, the employer must issue a warning.
If an employee then violates the smoking ban despite several relevant warnings, the employer can terminate the employment relationship for behavioral reasons, even if the employee has been with the company for a long time (Düsseldorf Higher Labor Court, 16 Sa 346/97).
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.