Ohio Voters Approve Broad Anti-Smoking Law

By James P. Wilkins
Kastner Westner & Wilkins LLC
The KWWLaborLaw.Communicator
Vol 7, No. 4 - Fall 2006

On November 7, 2006, voters in Ohio approved a broad no smoking ban for virtually all places of employment. State laws are normally passed by the Ohio General Assembly, but in this instance, a public referendum - Issue 5 - has resulted in the enactment of Ohio Revised Code Chapter 3794. Effective December 7, 2006, the law imposes new obligations on most private and public employers in Ohio.

An Ohio employer has always had the latitude to prohibit smoking anywhere in its facilities or on its property. However, even those employers who previously have adopted policies that broadly prohibit smoking undoubtedly will be required to take further affirmative steps to assure that the no-smoking restrictions imposed by the new statute are fully enforced.

The new law applies to virtually every employer in Ohio.

One narrow exception is "family-owned and operated places of employment in which all employees are related to the owner," but only if the place of employment is not open to the public and is in a building occupied solely by that employer. There are also limited exceptions for hotels, nursing homes, and retail tobacco stores.

The law prohibits smoking in any enclosed area at a place of employment, including offices, meeting rooms, sales, production and storage areas, restrooms, stairways, hallways, warehouses, garages, and vehicles. An "enclosed area" is defined as an "area with a roof or other overhead covering of any kind and walls or side coverings of any kind, regardless of the presence of openings for ingress and egress, on all sides or on all sides but one."

An employer also must prohibit smoking in any areas directly or indirectly under its control that are "immediately adjacent" to locations of ingress or egress to the place of employment. The statute does not define what constitutes "immediately adjacent," so employers may have to await regulations that provide more guidance on the scope of the no-smoking zone that must be enforced outside of doorways. Such regulations are due to be issued by June 7, 2007. An employer also must assure that smoke does not drift into the workplace through entrances, windows, ventilation systems, or other means.

All of the foregoing restrictions would seem to prohibit smoking in several areas that have commonly fallen through the cracks up until now, including areas just outside of doorways, on loading docks, in company-owned vehicles, and even in a smoking shack that is separated from the main place of employment. Though an employer may not be required to prohibit smoking in parking lots and other outside areas away from doorways, an employer remains free to do so.

"No smoking" signs or the international "No Smoking" symbol must be "conspicuously posted" in every place of employment where smoking is prohibited, including at each entrance to the place of employment. All signs must contain a telephone number for reporting violations. Employers also are required to remove ashtrays and receptacles for disposing of smoking materials from any area where smoking is prohibited by the statute. Since smoking is prohibited in entranceways under the employer's control, the statute would seem to require the displacement of smoking urns, ashtrays or receptacles that are typically placed outside of doorways. Such receptacles can no longer be "immediately adjacent" to the doorway.

The new statute has several enforcement mechanisms. The state Department of Health is charged with enforcement of the new law. It will establish systems for reporting violations, including a dedicated toll free telephone number. Following a written warning for the first violation, employers are subject to progressive fines ranging from $100 to $2,500.

An individual who refuses to immediately discontinue smoking in a prohibited area when requested to do so is subject to a fine of up to $100 per violation.

Unionized employers may have legal and contractual obligations that impact how they go about the task of complying with the new law. Therefore, they should consult with labor counsel before implementing any changes in policies or work rules. If you would like more information on this new law or assistance in implementing its provisions, please contact any KWW professional.


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