OHIO’S NEW SMOKE FREE WORKPLACE LAW

By

 Jerry P. Cline, Esq.

Last year, Ohio voters passed a new law banning smoking in the workplace by an overwhelming margin of 58% to 42%.  This new law went into effect on December 7, 2006 but the regulations and enforcement provisions did not go into effect until May 3, 2007.

The new law applies to all public places and places of employment.  A “place of employment” is defined as an enclosed area under direct or indirect control of the employer.”  This includes offices, meeting rooms, production/warehouse areas, restrooms, garages and company owned or leased vehicles.

Of course, there are some exceptions to the new smoking ban.  Exempted are home based businesses but only when non-resident employees are not present.  Also exempted are designated smoking rooms in hotels, specified areas in nursing homes and retail tobacco stores.  Vehicles are also considered “places of employment” when used for business purposes but smoking is banned only if the vehicle is occupied by one or more non-smoking persons.  For example, truck drivers who drive alone may smoke in the vehicle.

Smoking is also prohibited in areas immediately adjacent to exits and entrances of public places or places of employment.  This includes lobbies, entrance ways and areas immediately outside any door.  Moreover, employers must be careful to prevent smoke from entering through entrances, windows or ventilation systems.

Employees may smoke in ventilated areas far enough from the building so as to ensure that smoke does not get in.  They may also smoke on an “outdoor patio.”  An “outdoor patio” is specifically defined as an area with a roof but with no more than two sides, or no roof regardless of the number of walls.  However, the patio must be physically separated from an enclosed area and, if windows and/or doors form part of the barrier between the patio and the enclosed area, the windows and/or doors must be closed.

Finally, the new law requires that employers post no-smoking signs at entrances and in vehicles and remove all ashtrays and other cigarette receptacles from any area where smoking is prohibited.

The smoking ban is enforced through the Ohio Department of Health.  Complaints may be called in to 866-559-OHIO or emailed to nosmoke@odh.ohio.gov but the report of violation must include date and approximate time of the violation, name of the business or individual in violation and complete address, including county.  Upon receipt of any complaint, the ODH will present a written notice of complaint, a copy of the actual complaint, and an opportunity for the employer to address the allegation.  If, upon investigation, the ODH determines that a violation occurred, it will send a warning letter for the 1st offense.  2nd and later offenses bring increased fines beginning with $100 and increase to a maximum of $2500 per violation.  Employers who retaliate against employees for reporting a violation, or for refusing to hire a person for reporting a violation, may face fines as well.  Intentional violations are doubled.

To steer clear of any violations of Ohio’s Smoke Free Workplace law, adopt a company policy that includes where smoking is allowed and not allowed and how to report violations.  Include language such that “compliance is mandatory” and also include no retaliation language as well as tobacco cessation opportunities.  Doing these things may save you from a run-in with the ODH.

Jerry is an associate attorney with Andrews & Wyatt, LLC.  He focuses his practice in the areas of labor and employment relations, litigation and workers’ compensation defense.  You can contact him at 330-463-3660.