California Law Expands Ban on Smoking in the Workplace

Executive Summary

Overview:  California has amended Section 6404.5 of its Labor Code to expand the prohibition on the smoking of tobacco products in a place of employment.  In addition to bringing owner-operated businesses into the gambit of environments in which smoking is prohibited, the law eliminates most of the exemptions that permitted smoking in certain work environments, such as hotel lobbies, bars and taverns, banquet rooms, warehouse facilities, and employee break rooms.

Effective Date: January 1, 2017

Coverage: All employers with employees working in California.

Action Required:  Review current workplace smoking policies and ensure compliance with all applicable state and local regulations.

The Details

California employers are required to maintain a safe and healthful work environment. Consistent with this public policy, California enacted a statewide smoking ban in all enclosed workplaces.  The law included a number of exemptions that excluded many places of employment from its protection.  Local governments reacted quickly to fill in the gaps in the law by enacting ordinances that eliminated some or all of the exemptions. The state’s recent amendment to the statewide smoking ban is its response to the myriad of local, and sometimes confusing, workplace smoking restrictions.

“It is the intent of the Legislature in enacting [Section 6404.5 of the California Labor Code] to prohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in th[e] state.”  To that end, Section 6404.5 has been amended to extend the state’s smoking ban to owner-operated business.  The law now provides that “[a]n employer or owner-operator of an owner-operated business shall not knowingly or intentionally permit, and a person shall not engage in, the smoking of tobacco products at a place of employment or in an enclosed space.”  An owner-operated business is one in which the business has no employees, independent contractors, or volunteers and the owner is the only worker.  Any such owner, who allows a nonemployee access to his business on a regular basis, will not be found to have knowingly or intentionally violated the law if he or she posts clear and prominent signs at each entrance advising of the prohibition throughout the building or advising of the prohibition and identifying the designated smoking areas. An owner who is also found to have requested that a nonemployee refrain from smoking in an enclosed area will not be liable.  Violators are subject to fines not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation within one year, and five hundred dollars ($500) for a third violation and for each subsequent violation within one year.

The amendment also identifies seven places that are not considered “places of employment” for purposes of the law. They are: (1) 20% of the guestroom accommodations in a hotel, motel, or similar transient lodging establishment; (2) retail or wholesale tobacco shops and private smokers’ lounges; (3) cabs of motortrucks or truck tractors if nonsmoking employees are not present; (4) theatrical production sites if smoking is an integral part of the story in the theatrical production; (5) medical research or treatment sites if smoking is integral to the research and treatment being conducted; (6) private residences, except for private residences licensed as family day care homes; and (7) patient smoking areas in long-term health care facilities. While not subject to regulation pursuant to Section 6404.5, these places remain subject to regulation via local smoking ordinances. 

As always, please contact your Human Resources Business partner if you have any questions.