Do You Have The Right To Smoke At Work?

Smoking and the workplace are addressed by State law and by local laws in many cities and counties. Local laws can be more restrictive than the State law, but they cannot preempt the State law. The thrust of the State law is to prevent all smoking in the workplace, but the law does make exceptions for smokers under well-defined circumstances.

Smoking areas in the workplace must be in non-work areas. A break room can be created for the specific use of smokers, but State law does not require such a break room. If a break room for smokers is created, then it must have a fan that exhausts air directly to the outside air. The fan cannot recirculate air to other parts of the building. The restricted areas in the workplace includes lobbies, lounges, elevators, stairwells, waiting areas, lunchrooms and restrooms when these areas are part of the building structure. If a break room must be created for non-smokers if a break room is created for non-smokers.

Exemptions include employers, other than owners of bars and restaurants, with five or fewer employees. However, the following provisions of the State law applies:

> The smoking area cannot be accessible to minors.
> Each employee who has to enter the area where smoking is permitted must consent to permit smoking.
> No employee can be required to enter or work in an area where smoking is permitted.
> Air from the smoking area must be exhausted directly outside of the building.

Warehouses with more than 100,000 square feet of floor space are exempted if 20 or fewer employees work in the facility. The square footage does not include office space. Hotel lobbies are also exempted. Truck tractors and truck cabs are also exempted if no non-smoking employees are present.

The State law prohibits a non-employee from smoking in the workplace, and the employer must take reasonable steps to prevent smoking by non-employees. These steps can include the posting of prominent signs at every entrance clearly stating smoking is prohibited throughout the building. If necessary, the employer is required to request a non- employee who is smoking to refrain from smoking.