Legal Affairs
No smoking
How the new smoke-free-workplace law affects business
By Dale W. Hlaves
Smart Business Akron/Canton | January 2007
Two months ago, voters in Ohio spoke loudly to the legislators in Columbus and told them that they want the state to be as smoke-free
as possible. As a result, the Smoke-Free Workplace Act became effective on Dec. 7, 2006, making it illegal to smoke in almost any public place or place of employment, including employer-owned vehicles.
Under the new law, R.C. Chapter 3794, employers are required to make any employees who smoke do so in an area where there is no
chance that their smoke could find its way into a public area or place of employment.
The state will have until June 7 to come up with all enforcement regulations. That date is six months from the statute’s effective date.
“There are specific definitions of key terms in the statute itself,” says Aretta Bernard, a partner at Roetzel & Andress, L.P.A. in Akron. “What is very interesting is that the comprehensive definition of ‘employee’ includes someone who is not compensated, such as a volunteer.”
Smart Business spoke to Bernard about the effects the new law has in businesses across the state.
What does the new statute prohibit?
It prohibits the smoking and burning of tobacco in enclosed areas of public spaces and in places of employment, as well as some outdoor areas. ‘Place of employment’ is defined as an enclosed area under the direct or indirect control of an employer that its employees
use for work or any other purpose. These spaces include, but are not limited to, offices, meeting rooms, sales/production/storage areas,
restrooms, stairways, hallways, warehouses, garages and vehicles without regard to time of day or presence of employees.
Are there exceptions to the statute?
Yes. The nursing home exception (3794.03{D}) does allow a compliant, designated indoor smoking area, but provides that only nursing
home residents can use the designated smoking area. Employees and guests cannot use it and an employer cannot require any employee to go into the designated area or accompany a resident who’s inside it.
The other exception is that retail tobacco stores in operation prior to the effective date of the statute may allow smoking, but
only if 80 percent of the business’ gross revenue is generated from selling smoking products. Any tobacco store opened or owned
after the effective date of the statute must be in a free-standing building in order to allow smoking. Each retail tobacco store must
report to the Ohio Department of Health by January 31 of each year in an affidavit that it earns a minimum of 80 percent of its gross
revenue through the sale of cigars, cigarettes, pipes and other smoking devices.
Are there employer-specific mandates?
There are several. An employer can’t retaliate in any way against an employee who complains of a violation of the policy. Employers
are also required to post ‘No Smoking’ signs or the international symbol for no smoking on a sign with the phone number 1-866-559-OHIO (6446) clearly listed so that people can call to report a violation. The signs must be posted conspicuously at least at every
entrance to the building.
Also, ashtrays and other receptacles used for disposing of smoking materials must be removed in areas where smoking is prohibited.
If someone sees an ashtray, the employee or visitor may think it’s permissible to smoke.
Are there places employees can smoke?
Very few. Employees may smoke in their personal vehicles depending on where they park. An employer may designate an unenclosed,
outdoor area for smoking that is not immediately adjacent to locations of ingress or egress to the place of employment. Employers must
keep the area far enough away from the building so as not to let in any incidental smoke. Employers may face some challenges with
extended employee breaks depending on how remote the smoking area is.
If an employer owns a family-owned business that consists of, for example, spouses and children, then they can all smoke together. But
this exception is valid only if the business is away from the public, in a free-standing building, occupied solely by the place of employment and the smoke doesn’t migrate to an enclosed area where smoking is prohibited.
Can employers refuse to hire non-smokers?
No. Ohio Revised Code 3794.02{C} states unequivocally that no person or employer shall discharge, refuse to hire or in any way retaliate against any individual who exercises any right under the statute, including reporting a violation, or from performing any obligation,
such as disciplining an employee who violates the statute. The statute protects the people who both complain of violations and who
enforce the requirements.
ARETTA BERNARD is a partner in the Labor & Employment Group at Roetzel & Andress L.P.A. She focuses her practice on labor and employment litigation and has served as lead counsel in numerous
employment law matters for local and national clients. Reach her at (330) 849-6630 or abernard@ralaw.com.
