Article
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IncreaseDECEMBER 8, 2006
HOW WILL THE NEW SMOKE FREE WORKPLACE ACT AFFECT YOUR BUSINESS?
On November 7, 2006, the citizens of Ohio passed the Smoke Free Workplace Act (the “Act”) which prohibits smoking in enclosed areas of public places and enclosed areas of places of employment. The Act becomes effective and enforceable on December 7, 2006. The Ohio Department of Health is required by the Act to promulgate rules to implement and enforce the Act within six months of its enactment. The Ohio Department of Health is also required to inform proprietors of public places and places of employment within six months of the Act’s requirements and how to comply with the Act through printed and other materials, including, but not limited to a toll free telephone number and e-mail address. However, because the Act becomes enforceable on December 7, 2006, it is important that your business learn the requirements of the Act and take steps to comply with the Act immediately.
What Does the Act Specifically Prohibit?
The Act prohibits the proprietor of a public place or place of employment from permitting smoking in a public place or place of employment, or in the areas directly or indirectly under the control of the proprietor immediately adjacent to locations of ingress or egress to the public place or place of employment. The act also requires the proprietor of a public place or place of employment to ensure that tobacco smoke does not enter any area in which smoking is prohibited under the Act through entrances, windows, ventilation systems, or other means. In other words, not only is smoking prohibited in the workplace building, but also near the entrance and exit to the building, or anywhere else outside the building where smoke could enter the building in any manner.
Is My Business Required to Comply With the Act?
If your business meets the definition of a “place of employment” under the Act, then it must comply with the Act. According to the Act, a “place of employment” is defined as an enclosed area under the direct or indirect control of an employer that the employer’s employees use for work or any other purpose, including but not limited to, offices, meeting rooms, sales, production and storage areas, restrooms, stairways, hallways, warehouses, garages, and vehicles. As you can see, the definition of a place of employment is very broad under the Act and would include most types of businesses. Although there are a few exceptions to the Act, most businesses will not fall under these narrow exceptions. The definition of an enclosed area under the Act is also very broad and is defined as a structure with a roof and at least walls on all sides but one. Therefore, it is clear that most businesses will need to comply with the Act and you should consult your attorney if you have any questions as to whether your business must comply with the Act.
What Specific Actions Must My Business Take to Comply With The Act, Besides Prohibiting Smoking in the Building and Near Entrances and Exits?
The Act requires that “No Smoking” signs or the “No Smoking” symbol be conspicuously posted in every place of employment where smoking is prohibited by the Act, including at each entrance to the place of employment. The signs must be of sufficient size to be clearly legible to a person of normal vision throughout the areas they are intended to mark. Also, each sign must contain a phone number where a person can report violations of the policy. In addition to the posting of the “No Smoking” signs, all ashtrays and other receptacles used for disposing of smoking materials must be removed from any area where smoking is prohibited by the Act.
What Are The Penalties for Violating the Act?
The penalty for violation of the Act by a place of employment is a fine in the minimum amount of $100.00 and in the maximum amount of $2,500.00. Each day of a violation constitutes a separate violation. The first time a place of employment violates the Act they will receive a written warning. Any subsequent violation of the Act will result in fines which shall increase based on the number of previous violations. It is also important to know that lack of intent to violate the Act is not a defense to a violation of the Act.
Can Smoking Be Permitted Anywhere on My Business Property Under Any Circumstances?
Yes, the Act does not prohibit smoking in outdoor patios under certain conditions. An outdoor patio is defined in the Act as an area either: enclosed by a roof or other overhead covering and walls or side coverings on not more than two sides; or has no roof or other overhead covering regardless of the number of walls or other side coverings. The outdoor patio cannot be near the entrance or exit of the workplace enclosed area and must be physically separated from the enclosed area. Further, if windows or doors form any part of the partition between the outdoor patio and the enclosed area, the openings must be closed to prevent the migration of smoke into the enclosed area. If the windows or doors do not prevent the migration of smoke into the enclosed area then the outdoor patio shall be considered part of the enclosed area and smoking will not be permitted. Therefore, your business can permit smoking outside its facility in areas not near entrances or exits, or near places where smoke could enter the building by any means. Your business could also permit smoking in outdoor patios built in compliance with the Act as described above. However, it is important that you consult your attorney to ensure that your actions to allow smoking on the premises comply with the Act.
As you can see, the Smoke Free Workplace Act will likely affect your business in some manner and certain steps must be taken to comply with the Act. This article is just a summary of the key provisions of the Act. To ensure that your business is in full compliance with the Act it is essential that you discuss this matter with your attorney to determine what actions you need to take to avoid violating the Act.
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