Whether you can fire an employee for smoking?

When you read this title, you may have two reactions: (a) employees who are addicted to smoking think this is too harsh; (b) other employees who are the victims of “second-hand smoke” take it as a good idea, because it can prohibit more people from smoking in the working place. Which one is the right answer? Let’s see.

The first circumstance: the employer’s internal rules and regulations stipulate that employees who smoke in non-smoking areas shall be fired. In the past, some judges would denied the rationality of such provisions from the perspective that smoking would not cause serious harm or negative effects, such as (2015) Hu Yi Zhong Min San (Min) Zhong No. 441. However, recent years, many regulations on smoking bans in public places are implemented, such as national regulations, the “Detailed Rules for the Implementation of the Regulations on the Administration of Sanitation at Public Places”, and some local regulations, such as the “Regulations of Shanghai Municipality on Smoking Control in Public Places” and etc., the judicial departments have changed their attitude, more and more courts have supported the employers under such circumstance.

In practice, it is still recommended to pay attention to the following two issues.

First, the specific content of the internal rules and regulations on smoking bans. For example, in the case (2018) Jing 02 Min Zhong No. 2801, the specific content is that the employer could terminate the labor contract directly when an employee smokes in the working place or other non-smoking areas, and causes damages to the employer. However, the employer failed to prove its damages, and the court determined the employer had illegally terminated the labor contract.

Second, some companies (e.g. trading companies), or areas (e.g. normal working places other than production factory or warehouse), which do not have special requirements on fire control, if such employers stipulate that they could fire the employee for broking the smoking bans for the first time, then the court may analyze the rationality of such articles. We recommend that employers could give a written warning or other similar sanctions instead of terminate the labor contract.

The second circumstance: the employer’s internal rules and regulations have not mentioned any article about smoking bans. Under such circumstance, if an employee smokes in non-smoking areas and causes damages, or an employee smokes in the non-smoking (no open flames) areas in the factory, or warehouse designated by the employer in accordance with the “Fire Control Law”, and the employer terminate the labor contract based on the miscellaneous provisions in the internal rules and regulations, then it is very possible for the court to support the employer’s decision.

Finally, there is a very interesting issue, the e-cigarettes. Some courts take e-cigarettes as traditional cigarettes in hearing cases. For example, in the case (2019) Jing 0108 Min Chu No. 45869, the court pointed out that the spirit and purpose of the relevant legislation on smoking bans should be applied in both e-cigarettes and traditional cigarettes. On the other hand, although the e-cigarettes do not have open flames, high temperatures would be generated when smoking, if the environment is in a state of high oxygen, there is still a risk of fire. Therefore, despite the controversy, in view of the spirit and purpose of the relevant legislation on smoking bans, and the possibility of the actual hazards of e-cigarettes to fire control, smoking e-cigarettes should be punished referred to the traditional cigarettes.