Smoking breaks do not automatically count as working time. Unlike going to the bathroom or taking a short break at work, smoke breaks usually fall into the own free time and therefore both must pass Clock out or one Trial be documented.
Anyone who regularly leaves their workplace without logging off runs the risk, in the worst case scenario, of being notified Working time fraud.
Is there a legal regulation regarding smoking breaks?
Many people believe that there is a law that requires a certain number of smoking breaks, but this is not true.
- Regulated by law it’s just that Minimal break according to the Working Time Act (ArbZG):
- from 6 hours of work → 30 minutes of break
- from 9 hours of work → 45 minutes of break
- Count smoking breaks not automatically. Anyone who smokes during working hours must generally deduct it from their regular break.
Conclusion: There are no legal right to smoking breaks. The employer regulates everything else, often in coordination with the works council.
Difference: smoking breaks and bathroom breaks
A common mistake: during smoking breaks no working hours I am, this applies Bathroom breaks are definitely considered work time. Employers cannot prohibit employees from going to the bathroom or deduct it from their working hours. The difference is that bathroom breaks are necessary for health reasons, while smoking is a private decision.
Smoking breaks and works council co-determination
The topic of smoking breaks falls into the area of operational codetermination. The works council can have a say in the decision
- how smoking breaks are organised,
- if it must be eliminated,
- whether there is compensation for non-smokers.
A regulatory model for smoking breaks might look like this:
- Smoking breaks are not paid.
- Employees clock in for every smoking break.
- Violations may lead to consequences under employment law.
Smoking ban on company premises
Employers have the right of access to all company premises Smoking bans pronounce. If smoking is prohibited on the premises, employees can only smoke outside the company premises, which usually means longer absences. Employers are also not obliged to provide smoking areas.
Important: Where smoking is allowed, it must be Protection for non-smokers be guaranteed. This means that non-smokers should not be bothered by smoking in the building or workplace.
Contractual legislation regarding smoking during working hours
To avoid conflicts, many employers set clear rules directly in the employment contract or in an employment contract. Typical formulation:
“Smoking breaks do not constitute working time and must be documented by clocking in or appropriately recording time.”
This means there is clarity right from the start – for both smokers and non-smokers.
Possible consequences for violations
Anyone who takes smoke breaks without logging off or going out is committing the worst-case scenario Working time fraud. The consequences can be:
- Admonition or warning on the first offence
- Repeated case: harsher warning or salary reduction
- Serious cases: even one termination without notice is possible (e.g. if working hours are deliberately circumvented for a long period of time)
Courts have confirmed in various rulings that employers can act consistently in these cases.
Fairness in the team: compensation for non-smokers
Non-smokers often feel disadvantaged when colleagues regularly disappear for a cigarette. Possible Solutions for smoke breaks:
- Clearing time: Non-smokers receive additional free minutes per day or month.
- Compensation through flexible working time models: Smokers generally work longer than nonsmokers, perhaps 15-20 minutes a day.
- Clear rules: All breaks, whether smoking or non-smoking, are transparent through time recording.
Digital systems like clocking make it simple: every molding process is automatically recorded, misunderstandings are avoided and discussions in the team are reduced.
Conclusion: Clear rules prevent conflicts
Smoking breaks are not a legal right and do not automatically count as working time. Employers are well informed, of course Smoking break policy established – possibly in coordination with the works council. This avoids working time fraud, ensures fairness in the team and ensures the smooth running of the company.
If you decide that you want your employees to log their smoke breaks by the minute, clockin offers you the perfect solution. With clockin you can record breaks in your working hours with minute precision with just one click, whether it is a smoking break or your normal everyday lunch break. Confusing timesheets are a thing of the past!