The smoke-Free workplace: complying with Florida law

Florida employers were required to have smoke-free workplaces since the mid-1980s, but the state recently amended the Florida Clean Indoor Air Act to comply with the Florida Health Initiative. The law prohibits smoking in an “enclosed indoor workplace” with the exception of:

• Private residences
• Retail tobacco shops
• Smoking-designated guest rooms in hotels and motels
• Stand-alone bars
• Designated smoking rooms under the control of the U.S. Bureau of Customs and Homeland Security in airports
• Facilities that conduct medical or scientific research on smoking cessation

In effect, the law mandates that almost all of Florida’s workplaces must be smoke-free. The Florida Clean Indoor Air Act defines an “enclosed indoor workplace” as any place where one or more people engage in work and is predominantly or totally bounded on all sides and above by physical barriers.

The Clean Indoor Air Act doesn’t cover private clubs, and employers still may have designated smoking rooms for employees. Employers must implement policies dealing with violations and address the consequences for employees who break the smoke-free rule.

The Florida Department of Health and the Florida Department of Business and Professional Regulation enforce the law. Fines range from $250 to $2,000 per violation, depending on the size of the business and the number of previous violations.

Beyond the Clean Indoor Air Act

Nationally, many employers are looking to ban smoking altogether, eliminating all workplace smoking areas. Safety is a concern for many employers. For example, a construction worker’s smoldering cigarette was apparently to blame for an August fire at an abandoned Deutsche Bank skyscraper near Lower Manhattan’s Ground Zero that killed two firefighters.

(The Deutsche Bank fire also serves as a reminder that construction sites are workplaces, too, although smoking rules are seldom enforced there.)

Additionally, employers are increasingly skittish about secondhand smoke and its long-term health effects. Nonsmoking employees with smoke or chemical sensitivities may request a smoke-free workplace as a reasonable accommodation under the ADA or the Florida Civil Rights Act. Plus, secondhand smoke may lead to workers’ compensation claims if employees can show they were exposed at work.

Also on the horizon is a possible national ban on smoking in public places—and one presidential candidate has suggested exactly that. Sen. Hillary Clinton, D-NY, reportedly told an Iowa cancer-support group that a nationwide ban on smoking in bars, restaurants and other public places might be a good idea.

Advice: Check with your insurer to see what steps your policy requires you to take, and learn about discounts available if you ban smoking from your workplace.

Opportunity to quit

Employers can soften the blow of eliminating smoking areas by providing assistance to employees who want to quit smoking. Many workplace wellness programs include smoking-cessation classes. When implementing wellness programs, employers must be aware of two key federal laws: the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the ADA.

HIPAA prohibits employers from discriminating against employees based on their health condition when determining benefit premiums or contributions. HIPAA makes an exception for “wellness programs” where employers offer incentives or education to help change smokers’ behavior.

Wellness program rewards must be available to all of an employer’s similarly situated employees. Under HIPAA, that means that employees who have an unreasonably difficult time meeting the program’s standard must have an alternative reward available. Employers may ask for medical certification of the employee’s condition to verify that the program’s standards are indeed unreasonably difficult for the employee to attain.

In the case of a program designed to help smokers quit, employees who can document a nicotine addiction could gain the reward by agreeing to wear a nicotine patch or by attending smoking-cessation classes. For HIPAA compliance assistance, go to www.dol.gov/ebsa/pdf/CAGTableOfContents.pdf. 

Younger Floridians more likely to smoke