Extra vacation days for non-smokers?

From time to time, one comes across news articles informing us that a company in a certain country decided to award employees who are not smokers with added days of annual leave. Such news is published as curiosity, typically accompanied by a comment that this is a specific type of reward for higher efficiency of the employees who do not smoke, due to fewer breaks during working hours. The legality of such measures is usually not discussed, suggesting perhaps that in the countries in question this goes without saying.

As far as we could find, such practice has not gained traction in Serbia, save for the initiative by one political party to legalize this concept, which did not bring about any concrete results.

Leaving aside discussions on whether such measures are justified or appropriate, this made us wonder whether differentiating between employees who are smokers and those who are not in the context of annual leave (i.e., its duration) would be in compliance with Serbian labor laws or it would constitute discrimination?

Labor legislation does not regulate this issue explicitly, as the Labor Law only generally prescribes that the employer may provide additional grounds for an increase of annual leave, such as contribution at work, work conditions, work experience, professional qualifications, and other criteria. Therefore, the employer may set up additional criteria, but such criteria would have to be in line with the applicable regulations (including those which prohibit discrimination), legal principles, and even generally accepted values. Thus, to answer the given question we must resort to a more abstract interpretation of legal principles and values.

One possible interpretation would be that smoking is a personal choice and not a personal trait or belief, meaning that this could not constitute discrimination in the sense of the law. However, an opposite interpretation is possible based on the argument that smoking is an addiction (and consequently a disease), in which case different treatment of employees on these grounds would be considered as discrimination (the law explicitly forbids discrimination based on health condition). Treatment of smoking as an addiction/disease undoubtedly has medical grounds, but it could also be argued that in the particular case giving merit to this fact would be in collision with proclaimed strategic objectives and goals both on the country level and the level of international organizations, which emphasize prevention of smoking and protection from exposure to tobacco smoke.

Smoking in public is generally a polarizing topic that stirs controversy, especially when it comes to smoking in restaurants and cafes, and there is no doubt that the introduction of additional vacation days on these grounds by individual employers could lead to disagreements and complaints by certain employees.

Consequently, and especially having in mind the absence of relevant practice and official interpretations, employers intending to experiment with similar measures would be well recommended to approach this issue with caution and maximum adherence to formal procedures, especially as pertains to formalizing this additional criterion in the employer’s general and individual acts and procedures. In that sense, a bit of practical advice which could make the difference is to formulate the criterion for added vacation days in a way that does not differentiate between smokers and non-smokers but rather between employees who smoke during working hours and those who do not. This way an emphasis is put on specific behavior during working hours, which alleviates the risk of discrimination claims.

Finally, since this is a legal void and currently there is no adequate practice to fall back on, we think that the legislator should consider regulating this issue as part of the strategy around smoking prevention and protection from tobacco smoke.

This text is written for informational purposes only and does not constitute legal advice. We are at your disposal for any additional information. 

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