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Legality of Smoking Breaks

Smoking breaks are very common in a lot of fields, and many employees are surprised when their new employers do not offer them. Employers are not, in fact, required by law to provide smoking breaks. If you are a smoker changing employers, you should be familiar with the laws regarding work breaks in Texas.

Federal Laws

The Fair Labor Standards Act of 1938 provides that all work breaks of under 20 minutes must be paid breaks; that is, an employer cannot make you clock out or dock your pay for breaks you take that last less than 20 minutes. However, there is no federal law dictating that an employer must offer employees any kind of break, even a lunch break, no matter how long the job is.

State Laws

Most states have laws providing a lunch break. For any job over 7.5 hours in duration, a meal break of at least 30 minutes is required, as long as it is taken at least two hours after arriving and at least two hours before leaving. This is to prevent workers from using a lunch break to arrive late or leave early.

However, there are no state laws providing for work breaks. While brief, frequent breaks have been shown to be a practical way of increasing worker efficiency and morale, employers are not federally required to provide them. Though some states have laws providing for brief breaks throughout the day, Texas does not.


This having been said, many employers do provide breaks throughout the day. If these breaks are shorter than 20 minutes, the law dictates you must be paid for the break. While you can smoke during these breaks (if a particular area is designated for smokers), there are no laws providing for smoke breaks.

Contact Us

For more information on work breaks and the law, contact the Austin employment lawyers of The Melton Law Firm by calling (512) 330-0017.

The Melton Law Firm
925 S Capital of Texas Hwy
Ste B225
Austin, TX 78746
(512) 330-0017

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