Dental Office Hr Smoke Break

Human Resources for Dental Offices: Smoke breaks; Can employer recommend psychological treatment?

Dec. 9, 2014
HR experts help dentists with their questions and issues regarding staff.  
QUESTION: We’re in a state that does not require lunch breaks or meal periods. We provide a lunch break of one hour every day, but we do not offer any other structured breaks during the day. Employees who smoke, however, take breaks throughout the day that last about 10 minutes. Do we have to provide these breaks? If so, do we have to pay for them?

ANSWER: Employees who smoke do not inherently have a right to take breaks to smoke; therefore, you do not have to provide these breaks. You can limit their breaks to just the time provided for lunch. The Fair Labor Standards Act (FLSA) does have a requirement that all breaks that are less than 20 minutes be treated as working time and, therefore, paid. As such, I do not recommend you dock anyone’s pay if they continue to take these breaks after you’ve addressed the problem. You may, however, use other forms of disciplinary action (write-ups, suspensions, terminations, etc.).

QUESTION: An employee’s behavior has recently become detrimental to our business. His behavior is such that it is a hindrance to his job performance, which is very poor. Is it possible to require him to receive psychological counseling and/or treatment in order to remain employed?

ANSWER: In short, no, you can’t require this. Forcing someone to receive treatment, psychological or otherwise, is not something employers have the right to demand as a condition of employment. In fact, it is in your best interest that you do not approach the situation from this standpoint as it could open the floodgates to legal nightmares. The best rule of thumb is to address the situation in terms of job-related problems and to carefully document them. Unless this rises to the level of a protected disability, which may require other actions from you, you can (and should) treat this person just like you would any other employee.

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Human Resources Tips for Dental Practices is provided by Tim Twigg and Rebecca Boartfield of Bent Ericksen & Associates. Tim Twigg is president and Rebecca Boartfield is a human resource compliance consultant with Bent Ericksen & Associates. For 30 years, the company has been a leading authority in human resource and personnel issues, helping dentists deal successfully with the ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more about its services, call (800) 679-2760 or visit