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Employers, employees affected as Illinois adopts smoking ban

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in Discrimination and Harassment,Employment Law,Human Resources

Citing the toxicity of secondhand smoke, Gov. Rod Blagojevich signed Senate Bill 500, the Smoke-Free Illinois Act, into law on July 23.  The law takes effect Jan. 1 and requires employers to provide smoke-free workplaces for all employees.

In remarks at the bill signing, Gov. Blagojevich noted a 2006 Surgeon General’s report showing that workers exposed to secondhand smoke are 20% to 30% more likely to develop cancer than workers in smoke-free environments. Bill supporters claim the new law will save more lives than seat belts and decrease lung cancer rates by 20%—and all tobacco-related deaths by 10%.

The new state law does not mean employers can ignore local anti-smoking ordinances. Municipalities may still enact smoking bans that are tougher than state law, but all Illinois jurisdictions must meet the new state standards when the law takes effect.

With a few narrowly tailored exceptions, the law bans smoking in all “public places.” Generally, workplaces are considered public places. Vehicles open to the public also are considered public places, so company vehicles must be smoke-free under the law.

Employers must keep smoking areas at least 15 feet away from entrances and ventilation intakes. As with any employment law, this one has a posting requirement—employers must post “no smoking” signs in all non-smoking areas of the workplace. Remove the ashtrays while you’re at it; the new law bars them in non-smoking areas as well.

Employees or others who smoke in non-smoking areas may be fined between $100 and $250 per violation. Employers can be fined $250 for their first violation; $500 for their second violation in a year’s time; and $2,500 for their third violation in one year.

Not the only Illinois smoking law

Lest Illinois employers feel too righteously smoke-free, the Illinois Right to Privacy in the Workplace Act (RPWA) clearly prevents employers from discriminating against smokers. The RPWA bars employers from discriminating in “respect to compensation terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.”

Employers may not even inquire whether an employee or applicant has submitted claims or received benefits under the Workers’ Compensation or Workers’ Occupational Diseases Act. Such inquiries would run employers very close to violating the ADA anyway.

Employees who believe they have been discriminated against because of legal smoking on their own time may file a complaint with the Illinois Department of Labor. The department will attempt to mediate complaints, but should those efforts fail, the action may move to state court. The department itself may file the complaint, or the employee may. Employers who lose in state court actions must pay actual damages plus court costs. There is no cap on damages under this law.

Whatever initiatives employers try, they must uniformly enforce all rules. Targeting women, minorities, workers over 40 or the disabled could run afoul of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act or the ADA.

Walking the tightrope

Employers clearly have a balancing act here. The key point to remember is that employers control the workplace, and employees control their own time when not working. To smooth the path, employers should communicate to employees what the workplace rules are, but also assure them that what they do in their private lives does not affect their standing at work. 

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