Many employers are questioning their duties, effective tomorrow, under the “smoking ban” initiative passed by Washington voters on November 8, 2005. In summary,
- The new law amends the Clean Indoor Air Act to prohibit smoking in “places of employment.”
- Places of employment are defined to include any area controlled by an employer which employees are required to pass through, such as: entrances and, windows that open, ventilation intakes, work areas, restrooms, conference rooms, classrooms, break rooms, cafeterias, and other common areas.
- The Initiative requires that employers prohibit smoking within 25 feet of entrances, exits, windows that open, and ventilation intakes.
Employers are required to (1) prohibit smoking in these areas; and (2) post “no smoking” signs conspicuously at each building entrance.
Requirements
Initiative Measure No. 901, passed by Washington voters on November 8, goes into effect December 8 at 12:01 AM. The new law amends the Clean Indoor Air Act to prohibit smoking in “places of employment.” Places of employment are defined to include any area controlled by an employer which employees are required to pass through, such as: entrances and exits to places of employment, windows that open, ventilation intakes, work areas, restrooms, conference rooms, classrooms, break rooms, cafeterias, and other common areas. Employers are required to (1) prohibit smoking in these areas; and (2) post “no smoking” signs conspicuously at each building entrance. The laws allowing owners or lessees to designate smoking areas within public places were repealed by passage of the Initiative.
The Initiative requires that employers prohibit smoking within 25 feet of entrances, exits, windows that open, and ventilation intakes. Employers have the opportunity to rebut the presumption that a reasonable distance equals 25 feet by submitting an application to the local health department. A successful rebuttal requires clear and convincing evidence that a lesser distances will adequately protect public health and safety, i.e., smoke will not infiltrate or reach entrances, exits, windows that open, or ventilation intakes, or enter into the place of employment.
Enforcement and Penalties
The enforcement system created by the Clean Indoor Air Act remains the same, except that local health departments (instead of fire departments) will enforce the duties of employers to prohibit smoking and post appropriate signs. When an employer violates the statute by permitting smoking in “places of employment” or failing to post such prohibition, the local health department is instructed to either: (a) serve notice requiring the correction of any violation (the form of which is to be determined by the Washington Supreme Court); or (b) “call upon” the city or town attorney or county prosecutor or local health department attorney to maintain an action for an injunction, to correct a violation, and to assess and recover a civil penalty for the violation. The civil penalty is defined under the Clean Indoor Air Act as a fine of up to one hundred dollars. RCW 70.160.070(2). Under the Act, each day upon which a violation occurs or is permitted to continue constitutes a separate violation.