Compliance/Best Practices Employment Law Legal Topics

No Butts at Work, But Some Exceptions

ThinkstockPhotos-487538163Smoking in California workplaces has been prohibited for decades. But just because you see or smell tobacco smoke in a workplace doesn’t mean the law is being broken. Understand the law and its exclusions so you can properly advise your clients.

Under Lab C §6404.5, no employer may knowingly or intentionally permit, and no person may engage in, smoking of tobacco products in an enclosed space at a place of employment.

What burden does this law place on employers? An employer can meet the requirement of not knowingly or intentionally permitting smoking by a nonemployee as long as smoking is prohibited throughout the building and a sign stating “No smoking” has been clearly and prominently posted at each entrance, or smoking is permitted in designated areas of the building, and a sign stating “Smoking is prohibited except in designated areas” has been clearly and prominently posted at each entrance. Lab C §6404.5(c); 8 Cal Code Regs §5148.

When appropriate, the employer also has to ask the nonemployee who’s smoking to refrain from doing so in the enclosed workplace. But the employer doesn’t have to physically eject the nonemployee or ask him or her to stop smoking if doing so would pose a risk of physical harm to the employer or any employee. Lab C §6404.5(c)(2). See 8 Cal Code Regs §5148.

And not every workplace is covered by the smoking ban—the following are excepted (Lab C §6404.5(d))

  • Private smoking lounges attached to tobacco retailers;
  • Tobacco shops;
  • Hotel rooms designated for smokers and designated areas in hotel lobbies;
  • Bars and other establishments that are owner-operated and have no employees; and
  • Warehouses exceeding 100,000 square feet that have fewer than 20 employees.

Also excluded from the ban are breakrooms designated by employers for smoking as long as certain requirements are met, such as that the air from the room must exhaust directly to the outside and the breakroom must be located where no one has to enter as part of his or her work responsibilities. Lab C §6404.5(d)(13)(A)–(D).

And not all employers are covered by the ban. Those with five or fewer employees may permit smoking when all of the four following conditions are met (Lab C §6404.5(d)(14)(A)–(D)):

  1. The smoking area is not accessible to minors;
  2. All employees who enter the smoking area freely consent to allow smoking;
  3. Air from the smoking areas is exhausted directly outside by an exhaust fan and not recirculated to other parts of the building; and
  4. The employer is in compliance with any ventilation standard or other standard utilizing appropriate technology adopted by the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency.

When advising employers on workplace smoking, attorneys need to understand and communicate what’s covered by the ban and what’s exempted. And of course remind employers of the potential penalties for violations, which could be a fine of up to $500 for each violation for repeat offenders. Lab C §6404.5(j).

Be prepared to advise your clients on all aspects of workplace health and safety with CEB’s Advising California Employers and Employees, chap 12.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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