How many smoking breaks am I legally entitled to?

None – there is no legal entitlement. Only the rest breaks required by the German Working Hours Act (Arbeitszeitgesetz) are guaranteed.

How should smoking breaks be handled?

Best of all through a clear works agreement: clocking out, transparent rules and, where appropriate, compensation for non-smokers.

How often may I smoke during working hours?

As often as the agreement allows. Without a rule in place: every smoking break has to be deducted from working hours.

What rights do I have as a smoker?

The right to smoke during the required breaks – provided there is no smoking ban on the company premises. Beyond that there are no special rights.

Smoking Breaks at Work: The Law and Practical Rules

Are smoking breaks working time?

In short: no.

Smoking breaks do not automatically count as working time. Unlike a trip to the toilet or a short breather at your desk, smoking breaks generally fall into your own free time and therefore have to be documented either by clocking out or with a record.

Anyone who regularly leaves their workplace without signing out risks, in the worst case, a written warning for working time fraud (Arbeitszeitbetrug).

Is there a statutory rule on smoking breaks?

Many people believe there is a law setting out a certain number of smoking breaks – but that is not the case.

What is regulated by law is only the minimum break under the German Working Hours Act (Arbeitszeitgesetz, ArbZG):
- from 6 hours of work → 30 minutes' break
- from 9 hours of work → 45 minutes' break
Smoking breaks do not automatically count towards this. So anyone who smokes during working hours must as a rule deduct that from their regular break.

Conclusion: there is no legal entitlement to smoking breaks. Everything beyond that is set by the employer – often in agreement with the works council.

The difference: smoking breaks vs. toilet breaks

A common misconception: while smoking breaks are not working time, a toilet break very much does count as working time. Employers may not forbid employees to go to the toilet or deduct it from working hours. The difference is that toilet breaks are necessary for health reasons – whereas smoking is a private decision.

Smoking breaks & works council co-determination

The subject of smoking breaks falls within workplace co-determination. The works council can have a say in

how smoking breaks are organised,
whether employees have to clock out,
whether compensation for non-smokers is provided.

A model rule for smoking breaks could look like this, for example:

Smoking breaks are not paid.
Employees clock out for every smoking break.
Breaches can lead to consequences under employment law.

Smoking bans on company premises

Employers have the right to impose smoking bans across the entire company premises. If smoking on the premises is prohibited, employees may only smoke off site – which as a rule means longer absences. Employers are also not obliged to set up smoking areas.

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Important: where smoking is allowed, the protection of non-smokers must be guaranteed. That means non-smokers must not be affected by smoke in the building or at workstations.

Employment contract rules on smoking during working hours

To avoid conflict, many employers set out clear rules directly in the employment contract or in a works agreement. A typical wording:

“Smoking breaks are not working time and must be documented by clocking out or by corresponding time tracking.”

That way things are clear from the start – for smokers and non-smokers alike.

Possible consequences of breaches

Anyone who takes smoking breaks without signing out or clocking out commits, in the worst case, working time fraud. The consequences can be:

A reprimand or a written warning for a first breach
Repeat offence: a stricter written warning or a pay deduction
Serious cases: even dismissal without notice is possible (for example where working time is deliberately obtained by deception over a longer period)

Courts have confirmed in various rulings that employers may act firmly in such cases.

Fairness in the team: compensation for non-smokers

Non-smokers often feel disadvantaged when colleagues regularly disappear for a cigarette. Possible solutions for smoking breaks:

Compensatory time: non-smokers receive additional free minutes per day or per month.
Compensation through flexible working time models: smokers work longer than non-smokers as a matter of principle, perhaps 15-20 minutes a day.
Clear rules: all breaks – smokers and non-smokers alike – run transparently through time tracking.

Digital systems such as clockin make it easy: every clocking event is recorded automatically, misunderstandings are avoided and discussions in the team are reduced.

Conclusion: clear rules prevent conflict

Smoking breaks are not a right enshrined in law and do not automatically count as working time. Employers are well advised to set out clear rules on smoking breaks – ideally in agreement with the works council. That avoids working time fraud, keeps things fair in the team and ensures the business runs smoothly.

If you decide that your employees should record smoking breaks to the minute, clockin is the perfect solution for exactly that. With clockin, interruptions to working time can be recorded to the minute with a single click – whether for a smoking break or the normal, everyday lunch break. Confusing timesheets are a thing of the past!

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