OHIO’S NEW SMOKING BAN
LAW
November 2006
On November 7, 2006, Ohio voters passed
Issue 5 which bans smoking in “public places” and “places of
employment”. This new law (codified in Ohio Revised Code
Sections 3794.01 through 3794.09) takes effect on December
7, 2006. The Ohio Department of Health will enforce this
law and has six months from the effective date to adopt
rules for enforcement and to design a program to educate the
public regarding the law.
What the law prohibits:
-
Smoking in any “public place”
which means: an enclosed area to which the public is
invited or in which the public is permitted and that is
not a private residence.
-
Smoking in any “place of
employment” which means: an enclosed area under the
direct or indirect control of an employer that employees
use for work or any purpose, including but not limited
to, offices, meeting rooms, sales, production and
storage areas, restrooms, stairways, hallways,
warehouses, garages, and vehicles (without regard to the
time of day and presence of employees).
-
Smoking in areas under the direct
or indirect control of the proprietor of a public place
or place of employment immediately adjacent to locations
of ingress or egress to the public place or place of
employment.
-
A proprietor of a public place or
place of employment from allowing tobacco smoke to enter
any area in which smoking is prohibited through
entrances, windows, ventilation systems, or other means.
-
A person or employer from
discharging, refusing to hire or in any manner
retaliating against an individual for exercising any
right, reporting a violation or performing any
obligation under the new law.
-
Any person from refusing to
immediately discontinue smoking in a public place, place
of employment or a place or area declared non-smoking,
when requested to do so.
What the law requires public entities
and employers to do:
-
Ensure compliance with the above
provisions.
-
By December 7, 2006 post “No
Smoking” signs in conspicuous places in every public place
and place of employment, including at each entrance
of the public place or place of employment. The signs shall
be printed in a size sufficient to be clearly legible to a
person of normal vision and shall list the toll free
telephone number for reporting violations. You can
obtain a sample no smoking sign on the Department of
Health’s website:
www.odh.state.oh.us/alerts/ohiosmokingban.aspx
-
By December 7, 2006 remove all
ashtrays and other smoking receptacles from any area where
smoking is prohibited.
What are the penalties for violating
the no-smoking law?
-
First report of violation: Department
of Health will issue a warning letter.
-
Second or subsequent report of
violation: Department of Health will investigate the report
and if it finds a violation a civil fine will be imposed on
the proprietor or individual; the fine will be a minimum of
$100 per violation to a maximum of $2,500 per violation.
The schedule of fines will be defined by the Department of
Health when it issues its rules of enforcement.
Areas that are exempt from the
no-smoking law:
-
Private residences – except during
hours of operation as a child or adult care facility or
during hours of operation as a business when employees, who
are not residents of the residence and not related to the
owner, are present.
-
Designated smoking rooms of hotels,
motels and other lodging facilities (no more than 20% may be
designated as smoking rooms).
-
Free standing structures where
family-owned businesses are operated and where all employees
are related to the owner and areas not open to the public.
-
Nursing homes (as defined by Ohio
Revised Coe Section 3721.01(A): Separately enclosed and
ventilated smoking area may be provided for nursing home
residents. No employees of nursing staff shall be required
to accompany a resident into a designated indoor smoking
area or perform services in such area when being used for
smoking.
-
Retail tobacco stores (with some
restrictions and recordkeeping requirements).
-
Outdoor patios as defined by the
no-smoking statute provided no smoke migrates into an
enclosed area where smoking is prohibited.
-
Private clubs as defined by Ohio
Revised Code Section 4310.01(B)(13) with certain
restrictions.
Declaration of Nonsmoking
Establishment
Smoking shall be prohibited in any
establishment, facility or outdoor area that is declared as
nonsmoking even though the area does not otherwise qualify
as a “public place” or “place of employment”. To declare such
an area non-smoking, the required non-smoking sign must be
posted.
Practical Advice
-
Employers should assess their
workplace(s) and obtain and post where required the
non-smoking sign published by the Department of Health.
-
Employers should also consider drafting
and issuing/posting a non-smoking policy (for ultimate
inclusion in their employee handbooks) that addresses the
law’s prohibitions, how it applies to the employer’s
workplace(s) and the consequences for violating the policy
(for employees and third parties). The policy can be
distributed in employee meetings (if employee meetings
impractible, in employee paychecks).
-
Employers should train their
supervisors on the requirements of the non-smoking law and
ensure that its provisions are consistently enforced.
-
If employees are provided smoking areas
outside company buildings, the employer must make sure that
these areas are a sufficient distance from the building to
prevent smoke from migrating into enclosed areas where
smoking is prohibited.
-
Don’t forget about workplace areas
outside company premises such as company vehicles.
This Labor
and Employment Law Client Alert is brought to you by Wegman,
Hessler & Vanderburg’s Labor & Employment Group:
David R.
Knowles
drknowles@wegmanlaw.com Telephone: 216.642.3342
Antoinette F. Gideon
afgideon@wegmanlaw.com
Facsimile: 216.520.0145
Christopher A.
Holecek
caholecek@wegmanlaw.com
Jennifer A. Corso
jacorso@wegmanlaw.com
WHV Labor and Employment Law Client Alerts are intended as
summarized reports on developments in labor and employment law
and are not intended to provide legal advice. The resolution of
legal issues depends on the specific facts of each circumstance
and the applicable laws. Readers should not act upon the
information contained in these publications without professional
legal counsel.
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