Smoke-Free Workplace Act Regulations Issued
By Evelyn P. Schonberg In the first quarter RBS newsletter, we described the new Smoke-Free Workplace Act that was enacted by the citizens of Ohio and went into effect on December 7, 2006. Briefly stated, the law:
- Bans smoking in public places and places of employment, including at each entrance. “Place of employment” includes vehicles used for business purposes.
- Requires posting of “no smoking” signs in public places and places of employment. Appropriate signs can be downloaded at www.odh.ohio.gov.
- Requires removal of ashtrays and receptacles from areas where smoking is banned.
- Requires an employer to take reasonable steps to prevent smoke from entering prohibited areas, including asking people to stop smoking in those areas.
- Prohibits retaliation against anyone for exercising any right under the new laws.
- Places significant responsibilities on employers and proprietors to ensure that the smoke-free law is followed by all individuals and employees.
Since its enactment, there has been confusion as to whether or not the new law was really in place and whether or not it could be ignored. The confusion was the result of the absence of regulations describing the enforcement mechanisms.
On March 21, the Ohio Department of Health (ODOH) filed the regulations which took effect on May 3. The regulations designate local boards of health as the main enforcer of the law. The only way to initiate enforcement is by filing a complaint, which can be e-mailed, phoned or mailed. Only those complaints that appear to have merit and are made in good faith will be accepted and acted upon.
Once a complaint is accepted, a copy of it (along with a formal notice of violation from ODOH) will be provided to the offending party. Within 30 days from receipt of the notice, the offending party must submit a written statement responding to the allegations in the complaint. Upon receipt of the written statement, an investigation will commence.
If the investigation reveals that a violation has occurred and that the violator has no other violations in the past two years, the ODOH will issue a warning letter. However, if the violator has had a violation in the past two years, a proposed finding of a violation and a proposed fine will be issued. The alleged violator has the right to seek an administrative review of the decision and may appeal that into court.
The rules establish the following fine schedule:
Violations by Proprietors/Places of Employment
1st violation Warning letter
2nd violation $100
3rd violation $500
4th violation $1,000
5th or subsequent violation $2,500
Violations by Individuals
1st violation Warning letter
2nd or subsequent violation $100
Violations for Retaliation
1st violation Warning letter
2nd violation $1,000
3rd or subsequent violation $2,500
Upon a final finding of a violation, each day that a violation continues is a separate violation, subject to further fines. In addition, ODOH may double the fines imposed for intentional violations. Finally, ODOH has the discretion to reduce or waive a fine upon consideration of several factors.
At the time this article was written, at least three lawsuits are challenging the private club exemption that was written into the law. Under that exemption, all private clubs that have no employees are exempted from the smoking ban. The regulations further explained that “[f]or purposes of this exemption, the term 'employees' does not include members of the private club who provide services to the private club."
Not surprisingly, bar and restaurant groups are claiming that the exemption and the regulations create an unfair competitive advantage to private clubs. The American Cancer Society argues in its suit that the regulations leave an entire class of employees unprotected by the no-smoking law.
On April 30, a judge held that the American Cancer Society had shown a substantial likelihood of success on the merits and issued a temporary restraining order that forbids members of private clubs, such as the Veterans of Foreign Wars or Elks Lodge, to continue smoking. The order was scheduled for a further hearing on May 14.
Now that the no-smoking law is being enforced, all employers and owners of property must ensure that the no-smoking signs are posted at all entrances into a building, all ashtrays are removed from areas in which smoking is banned, and that a no-smoking policy be included in all employee manuals.
Please do not hesitate to contact Lynn Schonberg with any questions concerning the Smoke-Free Workplace Act Regulations.
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