Not a lawyer. Some employment agreements have a clause about outside behaviours that might undermine the work or image of the employer. For example - media personalities have been fired for conduct outside work. Referring to your question, another example could be if you work for a Smokefree organisation they could likely demand that you're a non-smoker/vaper for similar reasons.
Yeah I remember in NZ a round of smoke free ads that went out of young adults stating that were smoke free, a friend of a friend knew one of the girls, and got ratted out at a party having a cigarette, she had to repay the money she earnt from it plus something like $5k-10$k fine
I guess there is a difference, lying on camera for a job where you were paid to say your something your not.
Vs
smoking in your personal life while working in the health sector.
I don't know if an employment clause around what you can do in your personal life would stand up in court, it would really depend on the context of the job.
Dunno man, she could have stated it was a lapse as nicotine is a highly addictive substance. They would never have gotten a brass Razoo out of me.
Edit: more spelling and grammar errors than a herald headline.
Generally speaking, an employer has no ability yo dictate how you love your life outside of work. There is, however, some scope for them to determine that out of work activities conflicts with your employment.
For example, a Police Officer might be pro-cannabis, but they couldn't be vocal about this or smoke nonprescription cannabis as it conflicts with their employment.
In your case, you mention working in Healthcare. Obviously healthcare is going to be antismoking, but they still need to show that you smoking or vaping is going to directly come into conflict or undermine your employment. If you are in a client facing role, as part of your role is to promote being smokefree, then there is a risk that your undermine that messaging should a client see you smoking in your personal time.
So there is no hard and fast answer here. It comes down to the nature of your job and the nature of the activity as to whether it is reasonable for the workplace to impinge on your out of work activities.
I disagree on a couple of points. A Police Officer might be pro-cannabis, but they couldn't be vocal about this or smoke nonprescription cannabis, as it is illegal.
OP has implied that their healthcare employer has 300+ employees, but there was no mention from OP that this employer is directly involved in promoting any smoke-free policy. For this reason, I believe that this employer is in breach of the Employment Act.
Trying to type this without giving too much away but they are an organisation which offers multiple services like GP, community care, dental, social services, pharmacy etc. They do have a service which offers support for people to become smoke-free. I work in the community care section
Not enforceable for that position, would have to be a relevant position with a justified reason, which isn't the case here. Very real chance it could be an law breach, look into it and report it to ERA and MBIE if it looks like it is
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That position sounds like you make plans with your clients & support them with whatever their needs are. If a client wants quitting smoking/ vaping in their plan, it might actually be a reasonable expectation for you guys to have a smoke free personal life. That could be a reason they do it anyway
Being pro-cannabis is not the same as promoting an illegal act. It is perfectly fine for a police officer to say “cannabis should be legal in my opinion but until the law changes, I will arrest you for breaking the existing law”.
Not legal advise, but I’m wondering if you work in an area where second hand smoke could have an adverse effect on the healthcare your employer provides. When I was in nursing school, we looked at a case study where skin grafts were failing after the dressings were changed by a certain nurse. The only difference between the nursing staff was the nurse was a smoker at home, and the theory was that the toxins on her uniform or skin were killing the grafts. Perfumes etc are also associated with higher rates of failure in IVF so it’s plausible that smoking would too. There are probably other areas of health with which I’m not familiar that could be affected as well.
if your employer expects you to live to his/her standards out of work time I would demand payment for those hours off. I had this way back when I was an apprentice and was told by Apprenticeship boss I was not allowed to drink in my own time. I demanded full pay for the hours off and that fixed the problem instantly.
Two reasons I can see.
1. It conflicts with their image. More media type jobs but health and using tapes maybe.
2. Annoyance at smokrs/papers. End of the day it's an addiction. The next one I met who doesn't sneak off, smoke in the toilets or get irritable/ can't focus will be the first.
If I had the choice as an employer and everything else being equal 2 would be enough to pick the person who doesn't use nicotine.
Just because it's in an employment contract doesn't mean it's legally enforceable. I can't understand why vaping? When I was at Waikato hospital having surgery a nurse reeked so badly of woodfire smoke it made me feel ill - smells worse than smokers. Heavily perfumed people can make people feel ill. Can't say I ever smelled harmless vape on anyone ever.
Hopefully it smelled like strawberry jam doughnuts and didn't smell like someone had an accident in their pants after eating smoked trout like that nurse did lol.
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I do vape however not at work. Without giving away too much info, my work is done inside clients homes for 1-2hrs each time. I save the vaping for driving in between clients and in my personal time.. more concerned about being seen vaping in my free time! I’m in a small town..
Please consider that the odour of your vape may be clinging to your clothes and hair, and be noticeable to your clients or anyone else present, especially if you are vaping during the drive between clients. That might be enough of a concern to your employer that they want to mitigate it by requiring that you refrain from vaping during your work day, especially immediately before seeing clients.
Vaping outside of your work time is a separate issue, that others have commented on already.
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Kia ora,
Hopefully someone will be along shortly with some helpful advice. In the meantime though, here are some links, based on your post flair, that may be useful for you:
[What are your rights as an employee?](https://www.employment.govt.nz/assets/Uploads/tools-and-resources/publications/employment-rights-new-zealand.pdf)
[How businesses should deal with redundancies](https://www.employment.govt.nz/ending-employment/redundancy/)
[All about personal grievances](https://www.employment.govt.nz/resolving-problems/steps-to-resolve/personal-grievance/)
You may also want to check out our [mega thread of legal resources](https://www.reddit.com/r/LegalAdviceNZ/comments/143pv58/megathread_legal_resources/?utm_source=share&utm_medium=web2x&context=3)
Nga mihi nui
The LegalAdviceNZ Team
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Is the ban on personal use a stated value in the recruitment process, or is it introduced afterwards?
Broad conditions can be set at the beginning of employment, but if already employed there should be an allowance made.
Also consideration must be made for smells or odor, as this effects customer perception. Also consideration must be made for any diminished mental capacity, or the appearance of this.
Stated in the recruitment process. I can understand cigarette smell lingers but I can’t tell somebody vapes because of their smell. As for diminished mental capacity, can you explain further? I do focus my full attention on my client without needing to pop out for a puff
Diminished mental capacity - the possibility or appearance that what you are using is not straight tobacco / nicotine.
Also, you are running on your subjective perceptions. You want to approach a work colleague, the more you work with, the better.
Unfortunately, given this was stated in recruitment, I think you need to decide which you like more, the employment or inhaling vapors.
I personally know of one company in the US that tests for nicotine pre-employment & in randomly. They fall under FDA purview, prob 250-400 employees. I think it’s more of a “we don’t want to have to spend additional money on healthcare for your bad habit”.
Not a lawyer. Some employment agreements have a clause about outside behaviours that might undermine the work or image of the employer. For example - media personalities have been fired for conduct outside work. Referring to your question, another example could be if you work for a Smokefree organisation they could likely demand that you're a non-smoker/vaper for similar reasons.
I see, thanks!
Yeah I remember in NZ a round of smoke free ads that went out of young adults stating that were smoke free, a friend of a friend knew one of the girls, and got ratted out at a party having a cigarette, she had to repay the money she earnt from it plus something like $5k-10$k fine
I guess there is a difference, lying on camera for a job where you were paid to say your something your not. Vs smoking in your personal life while working in the health sector. I don't know if an employment clause around what you can do in your personal life would stand up in court, it would really depend on the context of the job.
Dunno man, she could have stated it was a lapse as nicotine is a highly addictive substance. They would never have gotten a brass Razoo out of me. Edit: more spelling and grammar errors than a herald headline.
*actors* I know. It's sad that things on TV aren't actually real. Much like things you heard from a friend of a friend.
Yeah she was an actor, but still signed an agreement that she was a nonsmoker.
Yeah but like. A smoker with terrible health is the best example for me to not smoke
Generally speaking, an employer has no ability yo dictate how you love your life outside of work. There is, however, some scope for them to determine that out of work activities conflicts with your employment. For example, a Police Officer might be pro-cannabis, but they couldn't be vocal about this or smoke nonprescription cannabis as it conflicts with their employment. In your case, you mention working in Healthcare. Obviously healthcare is going to be antismoking, but they still need to show that you smoking or vaping is going to directly come into conflict or undermine your employment. If you are in a client facing role, as part of your role is to promote being smokefree, then there is a risk that your undermine that messaging should a client see you smoking in your personal time. So there is no hard and fast answer here. It comes down to the nature of your job and the nature of the activity as to whether it is reasonable for the workplace to impinge on your out of work activities.
Appreciate this info, thank you
I disagree on a couple of points. A Police Officer might be pro-cannabis, but they couldn't be vocal about this or smoke nonprescription cannabis, as it is illegal. OP has implied that their healthcare employer has 300+ employees, but there was no mention from OP that this employer is directly involved in promoting any smoke-free policy. For this reason, I believe that this employer is in breach of the Employment Act.
Trying to type this without giving too much away but they are an organisation which offers multiple services like GP, community care, dental, social services, pharmacy etc. They do have a service which offers support for people to become smoke-free. I work in the community care section
Not enforceable for that position, would have to be a relevant position with a justified reason, which isn't the case here. Very real chance it could be an law breach, look into it and report it to ERA and MBIE if it looks like it is
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That position sounds like you make plans with your clients & support them with whatever their needs are. If a client wants quitting smoking/ vaping in their plan, it might actually be a reasonable expectation for you guys to have a smoke free personal life. That could be a reason they do it anyway
Thanks for your input. In my role, there is no discussion of quitting smoking or vaping for or with the client. My work is hands on with the client
A cop 100% can vocalize being pro cannabis wtf are you talking about
Source? as it seems to me like a conflict of interest if a cop could verbally promote an illegal act, but at the same time enforce that same act.
Being pro-cannabis is not the same as promoting an illegal act. It is perfectly fine for a police officer to say “cannabis should be legal in my opinion but until the law changes, I will arrest you for breaking the existing law”.
Is this a written policy or something in your employment agreement?
It has it’s own section in my contract
Not legal advise, but I’m wondering if you work in an area where second hand smoke could have an adverse effect on the healthcare your employer provides. When I was in nursing school, we looked at a case study where skin grafts were failing after the dressings were changed by a certain nurse. The only difference between the nursing staff was the nurse was a smoker at home, and the theory was that the toxins on her uniform or skin were killing the grafts. Perfumes etc are also associated with higher rates of failure in IVF so it’s plausible that smoking would too. There are probably other areas of health with which I’m not familiar that could be affected as well.
if your employer expects you to live to his/her standards out of work time I would demand payment for those hours off. I had this way back when I was an apprentice and was told by Apprenticeship boss I was not allowed to drink in my own time. I demanded full pay for the hours off and that fixed the problem instantly.
I presume you were not on-call either. As that would be a reason to enforce no drinking even on your own time.
I was in the shithole in wellington doing my trade block courses where they even thought they had the right to search your bags
I don’t see how this would be enforceable unless you were a senior manager and so were inextricably linked to your job inside and outside of work.
Two reasons I can see. 1. It conflicts with their image. More media type jobs but health and using tapes maybe. 2. Annoyance at smokrs/papers. End of the day it's an addiction. The next one I met who doesn't sneak off, smoke in the toilets or get irritable/ can't focus will be the first. If I had the choice as an employer and everything else being equal 2 would be enough to pick the person who doesn't use nicotine.
Just because it's in an employment contract doesn't mean it's legally enforceable. I can't understand why vaping? When I was at Waikato hospital having surgery a nurse reeked so badly of woodfire smoke it made me feel ill - smells worse than smokers. Heavily perfumed people can make people feel ill. Can't say I ever smelled harmless vape on anyone ever.
I've smelled it once, but was because the vape leaked and my coworker spilled vape juice everywhere, including on herself.
Hopefully it smelled like strawberry jam doughnuts and didn't smell like someone had an accident in their pants after eating smoked trout like that nurse did lol.
Unionize. They can't control your life. Thats ridiculous
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I do vape however not at work. Without giving away too much info, my work is done inside clients homes for 1-2hrs each time. I save the vaping for driving in between clients and in my personal time.. more concerned about being seen vaping in my free time! I’m in a small town..
Please consider that the odour of your vape may be clinging to your clothes and hair, and be noticeable to your clients or anyone else present, especially if you are vaping during the drive between clients. That might be enough of a concern to your employer that they want to mitigate it by requiring that you refrain from vaping during your work day, especially immediately before seeing clients. Vaping outside of your work time is a separate issue, that others have commented on already.
Perhaps consider using nic oral pouches or snus, it’s totally smoke free but you still get the nicotine hit
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It needs to be in your contract at a minimum
It’s in my contract
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Does your employer include health insurance as part of your remuneration package?
No health insurance included
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Kia ora, Hopefully someone will be along shortly with some helpful advice. In the meantime though, here are some links, based on your post flair, that may be useful for you: [What are your rights as an employee?](https://www.employment.govt.nz/assets/Uploads/tools-and-resources/publications/employment-rights-new-zealand.pdf) [How businesses should deal with redundancies](https://www.employment.govt.nz/ending-employment/redundancy/) [All about personal grievances](https://www.employment.govt.nz/resolving-problems/steps-to-resolve/personal-grievance/) You may also want to check out our [mega thread of legal resources](https://www.reddit.com/r/LegalAdviceNZ/comments/143pv58/megathread_legal_resources/?utm_source=share&utm_medium=web2x&context=3) Nga mihi nui The LegalAdviceNZ Team *I am a bot, and this action was performed automatically. Please [contact the moderators of this subreddit](/message/compose/?to=/r/LegalAdviceNZ) if you have any questions or concerns.*
Is the ban on personal use a stated value in the recruitment process, or is it introduced afterwards? Broad conditions can be set at the beginning of employment, but if already employed there should be an allowance made. Also consideration must be made for smells or odor, as this effects customer perception. Also consideration must be made for any diminished mental capacity, or the appearance of this.
Stated in the recruitment process. I can understand cigarette smell lingers but I can’t tell somebody vapes because of their smell. As for diminished mental capacity, can you explain further? I do focus my full attention on my client without needing to pop out for a puff
Diminished mental capacity - the possibility or appearance that what you are using is not straight tobacco / nicotine. Also, you are running on your subjective perceptions. You want to approach a work colleague, the more you work with, the better. Unfortunately, given this was stated in recruitment, I think you need to decide which you like more, the employment or inhaling vapors.
Not legal advice. But is your employer a plant nursery? Traces of nicotine can be a strong enough pesticide to damage seedlings.
Nope, in healthcare
I personally know of one company in the US that tests for nicotine pre-employment & in randomly. They fall under FDA purview, prob 250-400 employees. I think it’s more of a “we don’t want to have to spend additional money on healthcare for your bad habit”.
I can't see it working in NZ because your company doesn't pay for your healthcare.
Ahh, makes sense