Business life and passive smoking: what is the current status of the “security obligation”?

Since the Evin Law of 1991 and the one passed on February 1, 2007, smoking in an enclosed, covered workplace has been prohibited. The goal: to protect victims of secondhand smoke. But what can be done if this measure isn't properly implemented? Virginie Langlet, a lawyer at the Paris Bar, recently answered this question.

Employee protection is evolving

An employer is legally obliged to ensure the safety of its employees and protect their physical and mental health. It must therefore, as soon as a risk exists, implement appropriate preventive measures. However, if this risk materializes, the employer must pay its employee damages, unless it can prove that it has actually taken all the measures provided for by the Labor Code. However, the case law of the Court of Cassation has evolved, and the employer is now no longer bound by a health obligation of results but by a health obligation of means.

Smoking ban

According to the French Public Health Code, smoking is prohibited in workplaces consisting of enclosed and covered spaces. This ban applies to common and work areas, meeting or training rooms, and even non-shared offices. Employers are commonly recommended to include this ban in the company's internal regulations. If the company wishes to establish a smoking area for its employees, it must consult the CHSCT (Health, Safety, and Working Conditions Committee) or the CSE (Works and Safety Committee), as well as the occupational physician.

What penalty for the company?

Every employer must display and enforce the smoking ban in their company. In this context, they may use their organizational and disciplinary powers if necessary. They must protect employees from the cigarette smoke of their colleagues as well as from that of the establishment's customers. Failure to comply with this framework may result in the employee's employment contract being terminated, which will be equivalent to dismissal without real and serious cause. However, they must be able to prove that the employer's failure prevents the continuation of the employment contract.

The employee must be exposed to passive smoking himself

Indeed, the Court of Cassation clarified on May 15, 2019, that the employee must have been exposed to cigarette smoke in order to be able to acknowledge the termination of their employment contract due to the employer's fault. If, for example, an employee notices tobacco use in a room to which they never have access, they cannot acknowledge the termination of their contract—this would then amount to a resignation.

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[i] This article might interest you: “The ban on smoking on restaurant terraces” https://www.generationsanstabac.org/actualites/linterdiction-de-fumer-sur-les-terrasses-de-restaurants/

Ms. Virginie Langlet (lawyer at the Paris Bar), “Passive smoking in the workplace and the employer’s safety obligation”, June 21, 2019, www.juritravail.com https://www.juritravail.com/Actualite/Hygiene-securite-travail-employeur/Id/302464

Cass. soc. 29.06.2005, n° 03-44412 Cass. soc. 06.10.2010, n° 09-65103 Cass. Soc. 11.03.2015: n°13-18603 Cass. soc. 25.11.2015, n° 14-24444 Cass. Soc. 015.05.2019: n°18-15175 Labor Code. art. L. 4121-1 and L. 4121-2 Public Health Code, articles L.3512-8, R.3512-2, L 3513-6 and L 3513-19

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