New Workplace Smoking Ban Takes Effect
Date: March 1995

A new law banning smoking in the workplace went into effect on January 1, 1995. The law affects most California employers. Here is what employers need to consider in implementing this new statute:

I. Smoking Prohibited

A new California law is in effect which prohibits employers from “knowingly or intentionally” permitting -- and “persons” from engaging in -- smoking of tobacco products in enclosed places of employment. This law, Section 6404.5 of the Labor Code, is intended to reduce employee exposure to environmental tobacco smoke. The law does not require employers to reasonably accommodate smokers or to provide designated areas for smoking. The effect is to generally ban smoking at work -- with some exceptions.

II. Exceptions

Although there are some exceptions for certain types of businesses, there are very specific rules for each exception —based on size, number of employees, etc. For instance, hotels or similar lodging facilities can designate a portion of certain places (e.g. 65% of guests rooms, 25%-50% of lobby areas) in which smoking is allowed. Smoking in meeting or banquet rooms is also permitted, except while food or beverages are being served or when the room is being used for an exhibit. When smoking is not permitted in the room, it may be permitted in the corridors or pre-function areas. Other places of employment in which smoking may be permitted (given particular circumstances) include: theatrical production sites; gaming clubs or bingo facilities; medical research or treatment sites; patient smoking areas in long-term health care facilities; warehouse facilities; and cabs of trucks. Other exceptions include bars and taverns in which food is incidental. However, smoking at the workplace is not permitted in a restaurant dining area even though it is adjacent to a bar or tavern. Also exempted are private residences, except those licensed as family day care homes and in areas where children are present.

III. Small Employers

The law also provides certain exemptions for small businesses. Employers of five or fewer full- or part-time employees may permit smoking at the workplace only under the following conditions:

The smoking area is not accessible to minors.
All employees entering the smoking area must consent to permit smoking. No one, as part of his or her work responsibilities, can be required to work in an area where smoking is permitted.
Air from the smoking area has to be exhausted directly to the outside.
The employer must comply with specific ventilation standards for “break rooms” (as described below).

IV. Break Rooms

Both large and small businesses may designate a “break room” in which employees can smoke, provided that all of the following conditions are met:

Air from the room must be exhausted directly to the outside by an exhaust fan and can not be recirculated to other parts of the building.
The employer must comply with ventilation standards utilizing the appropriate technology adopted by the Occupational Safety and Health Standards Board (“OSHB”) or the federal Environmental Protection Agency (“EPA”).
The room must be located in a nonwork area where no one, as part of his or her work responsibilities, is required to enter. This does not include maintenance work performed when the room is unoccupied.
There must be sufficient nonsmoking break rooms to accommodate nonsmokers.

V. Penalties

Failure to comply with this new state law can result in fines for each violation. The fine for the first violation is up to $100, the second violation within one year is $200, and $500 for the third and each subsequent violation within one year. Enforcement of this law is entrusted to local law enforcement agencies designated by local government, such as local health departments.

VI. Nonemployees

The new law also applies to nonemployees who smoke at the workplace. If the employer takes the following reasonable steps, however, the business can avoid liability under the new smoking restrictions:

Post clear and prominent signs stating either “No Smoking” or “Smoking is Prohibited in Designated Areas.” These signs must be posted at each entrance to the building.
Request, when appropriate, that a nonemployee who is smoking refrain from doing so.

The employer, however, is not required to physically remove a nonemployee or to demand that the nonemployee refrain from smoking if there is a threat of physical harm.

The laws are somewhat complex and, for most employers, the requirements may be quite new. If you have questions regarding the laws, need assistance in complying with them or wish further information, please feel free to call an attorney in the Labor Department, at (310) 858-7700.

Our Labor Department represents employers in wrongful termination, sexual harassment, and employment discrimination cases in state and federal courts. The department also represents employers in collective bargaining negotiations, arbitrations and matters before state and federal administrative agencies. In addition, we provide general labor counseling on unionization, personnel policies, grievances and wage and hour issues.

Rosenfeld, Meyer & Susman was founded in 1957. The Firm’s areas of expertise include: Labor and Employment Law, Litigation, Corporate, Entertainment, Trusts and Estates, Taxation, Family Law, Insurance Coverage and Defense, Real Estate and Employee Benefits.

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