Smoking is only allowed during breaks in designated smoking areas or outside the company building. Exceeding this time, as well as smoking outside the permitted areas, can be considered a violation of work obligations.
Written by: Prof. Dr. Hrvoje Kačer
Everything is already known about the ‘smoking protocol’ in public spaces and hospitality establishments, and lists of cafes where smoking is allowed are circulating on the internet. However, the practical consequences of this and related laws and regulations for employers have taken a back seat. Although the law and the regulations related to it are quite clear, many still do not take them seriously when it comes to workplaces in companies that are not explicitly mentioned in the Law on the Restriction of the Use of Tobacco Products, such as schools or hospitals, where smoking is absolutely prohibited in any variant. To avoid severe penalties after inspections, employers must pay attention to two laws: the Law on the Restriction of the Use of Tobacco Products and the Law on Occupational Safety. According to the Law on Occupational Safety, smoking is prohibited at work meetings, as well as generally in workplaces and areas, except in those where the employer specifically determines that smoking is allowed, and in such a room, a sign must be displayed indicating that it is a smoking area.
According to the letter of the law
What can be a smoking area
A smoking area must be an enclosed room with doors that must close automatically. Above the door of the smoking area or next to it, there must be a sign ‘Smoking Area’ with the number of people who can smoke there at the same time. The smoking area must be arranged so that air contaminated with tobacco smoke cannot enter other spaces, the area must not be less than 10 m², it must not be intended for passage to other rooms, and food and drinks must not be served there.
Thus, the employer, even if they want to, has no real option to allow smoking at meetings, but they can (but are not required to) designate a special room where smoking is allowed. If such a room is designated, it must be marked with a special sign that smoking is allowed there and physically separated from other rooms and meet a number of additional conditions, which, of course, means additional costs. Penalties for violators are not small. The employer can be fined between 30,000 and 150,000 kuna if they do not ensure compliance with the smoking ban in enclosed public spaces or if the area designated for smoking does not meet the legally prescribed conditions. The responsible person will receive a fine of 5,000 to 15,000 kuna, and a caught smoker on the spot will be fined 1,000 kuna.
Breaks in installments
If the employer does not decide to provide a smoking room, employees are left with no choice but to smoke outside, which is often the case in practice. Just look at the terraces on the upper floors of business and administrative buildings of the state administration, where smokers closely resemble outlaws from some past times. The problem is that this constitutes an absence from the workplace, which the employee is entitled to only during breaks, which according to the Labor Law is 30 minutes.
Of course, the employer can divide this break, for example, into five times of six minutes each, but they are not obliged to do so; sometimes (most often) the work process will not allow it. Imagine, for example, if a judge interrupts a hearing every 20 minutes to go smoke?! If an employee smokes where they are not allowed and at a time when they are not allowed, they are clearly violating their work obligations. If they violate it, they can do so with varying intensity, which can lead to different consequences, including termination of the employment contract. In any case, if termination occurs, it falls into the category of wrongful dismissals. However, it should be noted that the Labor Law leaves a number of ‘details’ to judicial practice or employment contracts or collective agreements. Among the things that are imprecisely resolved by this law is what constitutes a violation of obligations from the employment relationship as grounds for regular dismissal, as well as what constitutes (as grounds for immediate dismissal) a particularly serious violation of obligations from the employment relationship or some other particularly important fact due to which, taking into account all circumstances and the interests of both contracting parties, the continuation of the employment relationship is not possible.
