Smoking Rules Change for California Employers

Effective June 9, 2016, some rules for smoking in the workplace will change. Under new legislation signed by Governor Jerry Brown on May 4, 2016, the new laws will:

• Treat e-cigarettes, vaporizers, and other nicotine-delivery devices as “smoking” and smoking bans will cover these products.
• Remove most of the existing exemptions that permitted smoking in certain work environments.
• Expand the workplace smoking band to include owner-operated businesses.
• In some cases, change the legal smoking age from 18 to 21.

Previous Exceptions Up in Smoke

The smoke-free workplace protections prohibit employers from knowingly or intentionally allowing smoking at their place of business or in an enclosed space by employees and nonemployees. New law expands the ban to cover owner-operated businesses. Persons that own their own business and are the only person working there are no longer exempt from the law. Small employer exemptions (where a business has five or fewer employees) are also eradicated.

Employers who allow nonemployees in their workplace on a regular basis must take steps to comply with the smoking ban. These steps include:

• Placing a sign stating “No Smoking” at each entrance to the building where smoking is prohibited throughout the building.
• If smoking is permitted in designated areas of the building under one of the laws exemptions, a sign stating “Smoking Is Prohibited Except in Designated Areas” must be placed at each building entrance.
• Nonemployees who are smoking must be advised to refrain from doing so, where appropriate. (The law does not require the nonemployee to be physically removed from the workplace and does not require that a request to refrain from smoking be made to a nonemployee if there is a risk of physical harm to employees.)

Most exemptions for specific work environments, for example bars and taverns, hotel lobbies, banquet rooms, and warehouse facilities, are also eliminated. In addition, employee-designated smoking break rooms are eliminated. 

Where is Smoking Allowed

Not all exemptions are eliminated. Smoking is still allowed in:

• 20 of the guest room accommodations in lodging establishments, such as hotels.
• Retail or wholesale tobacco shops and “private smokers’ lounges” enclosed in or attached to tobacco shops.
• Cabs of motor trucks or truck tractors in no nonsmoking employees are present.
• Theatrical production sites, if smoking is an integral part of the production.
• Medical research or treatment sites, if smoking is a fundamental part of the research and treatment being conducted.
• Private residences, except those licensed as family day care homes, during the hours of operation and in areas where children are present.
• Patient smoking areas of long-term health care facilities.

What Employers Should Do

Violation of the laws can subject employers to fines from $100 up to $500. It is best that employers review their existing workplace smoking policies to make sure they comply with the new laws. Also, take responsible steps to prevent nonemployees from smoking in the workplace.

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