Last updated: March 2026
Smoking at Work: What’s Allowed and What Isn’t?
Smoke breaks, non-smoker protection and the employer’s right to set house rules – smoking at the workplace is a constant source of conflict. Can your boss ban smoking entirely? Do smoke breaks have to be made up? And can repeated smoking even justify a dismissal? This article summarises the current legal situation and offers solutions for both sides.
Smoking During Working Hours: What’s Allowed?
In Germany, there is no legal right to a smoke break. The Working Hours Act (ArbZG) does require rest breaks – at least 30 minutes for shifts over six hours – but whether an employee may use that break to smoke depends on the company.
The employer may use their right of direction (§ 106 GewO) to decide when and where smoking is allowed. This means they can prohibit smoke breaks outside regular break times or attach conditions – such as a designated smoking area or a time limit.
Key point
There is no “right to a smoke break.” Extra breaks for smoking are tolerated by the employer, not a legal entitlement.
Smoke Breaks: Does the Employer Have to Pay?
No. Smoke breaks do not count as working time under employment law. The employer is therefore not obliged to pay for them. Many companies use time-tracking systems that require smokers to clock out and back in for each break.
The Federal Labour Court (BAG) has confirmed in several rulings that employers may exclude smoke breaks from paid working time. Someone who takes four five-minute smoke breaks per day “loses” more than one and a half hours of working time per week – time the employer does not have to pay for.
- ✓Smoke breaks are not paid working time.
- ✓Employers may require time tracking for smoke breaks.
- ✓Works agreements can establish special arrangements.
Smoking as Grounds for Dismissal
Smoking alone is generally not grounds for dismissal. However, if an employee repeatedly violates a company smoking ban or takes unauthorised smoke breaks despite a formal warning, a conduct-related dismissal may be justified.
Particularly tricky: e-cigarettes and vapes at the desk. Even though vapour may be less harmful, their use often falls under the company smoking ban. Several labour courts have ruled that employers may prohibit vaping at the workplace – and issue formal warnings for violations.
Formal Warning
A first violation of the smoking ban usually results in a formal warning. Only repeated violations can lead to dismissal.
Immediate Dismissal
In safety-critical environments (e.g. petrol stations, chemical plants), smoking can even justify immediate dismissal – without a prior warning.
Non-Smoker Protection and Personal Rights
The Occupational Health and Safety Act (ArbSchG) and the Workplace Ordinance (ArbStättV, § 5(1)) oblige employers to effectively protect non-smoking employees from tobacco smoke at the workplace. Non-smokers therefore have a legally enshrined right to a smoke-free workplace.
At the same time, the general right to personal freedom (Art. 2(1) GG) protects each individual’s freedom of choice. This means: smoking during leisure time cannot be sanctioned by the employer. The ban is limited to working hours and company premises.
“The employer shall take the necessary measures to effectively protect non-smoking employees in workplaces from the health hazards of tobacco smoke.”
Solutions for Smokers and Non-Smokers
The best solution is a fair compromise. Many companies now rely on clear rules that respect both non-smoker protection and the needs of smokers:
- ✓Set up designated smoking areas in the outdoor parts of the premises.
- ✓Define the maximum number and duration of smoke breaks in a works agreement.
- ✓Offer non-smoking colleagues an equivalent benefit – such as an additional short break.
- ✓Promote smoking cessation programmes as part of workplace health initiatives.
- ✓Transparent time tracking instead of covert monitoring.
Frequently Asked Questions
Can the boss ban smoking entirely?
Yes. Under their right of direction and house rules, employers may prohibit smoking on the entire company premises. This also applies to e-cigarettes. It does not affect statutory break time – employees still have their breaks, just not for smoking on company grounds.
Do I have to make up smoke breaks?
Yes, this is permissible. Since smoke breaks are not working time, the employer may require the missed time to be made up. In companies with electronic time tracking, this happens automatically: anyone who clocks out to smoke must make up the time at the end of the day.
Can you be fired for smoking?
Not as a blanket rule, but under certain circumstances: anyone who repeatedly violates a company smoking ban despite formal warnings risks a conduct-related dismissal. In safety-critical areas, immediate dismissal without prior warning is even possible.
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Sources: Occupational Health and Safety Act (ArbSchG), esp. § 5. Workplace Ordinance (ArbStättV), § 5(1) – non-smoker protection. Trade Regulation Act (GewO), § 106 – right of direction. Federal Labour Court (BAG), various rulings on smoke breaks and workplace smoking bans.