ALBANY -- A New York appeals court has upheld the firing of a worker who took smoking breaks despite a new policy by her employer.

The court shows the woman, paralegal Karen Krindel of Rochester, was fired in November 2006 after 15 months on the job because she didn't comply with a new written policy that banned smoking breaks.

She applied for unemployment benefits and received about $3,000 worth. But a state Labor Department board later rejected that. The state argues she was fired for misconduct and misrepresented the reason for her dismissal.

The Appellate Division of state Supreme Court agrees. Now Krindel may have to repay the $3,000, unless she wins an appeal.

She argues banning smoking breaks is unfair to smokers who use breaks to re-energize and become less "crabby."