by Richard I. Thomas, Esq. and Robert A. Gallagher, Esq.
In June, Gov. Ed Rendell signed into law the Clean Indoor Air Act (CIAA), which regulates smoking in places across the commonwealth (except the city of Philadelphia because it already has a similar smoking ban in place).
The CIAA prohibits smoking in indoor areas such as enclosed public places, restaurants, nightclubs and workplaces. A workplace is defined as an indoor area serving as a place of employment, occupation, business, trade, craft or professional or volunteer activity. This includes offices, meeting rooms, production and storage areas, cafeterias, lunchrooms, break rooms, restrooms, stairways, etc. According to the Pennsylvania Department of Health, a workplace is enclosed when at least a portion of the building is enclosed with a floor, walls and a ceiling.
In certain circumstances, however, determining exactly when a work space becomes enclosed may prove to be difficult. For example, at what phase during the construction of a building does the work space become enclosed? And is an open-ended shed or garage located on the grounds of a business “enclosed” for the purposes of the CIAA? These and other questions remain unanswered and may potentially affect your business.
Not all places must ban smoking. Examples of exempt workplaces include private clubs, full-service truck stops and bars with annual food sales less than or equal to 20% of combined gross sales (and that do not admit anyone under 18 years of age). Casinos may allow smoking on 25% of their gaming floors.
Except for sports or recreation facilities, theater or performance establishments, smoking on the outdoor property of a business building is allowed. Of course, the owner of the property is always permitted to ban all smoking.
All places, including those exempted, must have a sign. Those places where smoking is prohibited, including workplaces, must prominently post “no smoking” signs or the international “no smoking” symbol. Exempt facilities must post “smoking permitted” signs so as to notify employees or patrons where smoking is permissible.
Penalties for violations
The State Department of Health operates a hotline and web site for registering complaints about violations of the law. If someone complains that you aren’t complying, you will get a letter with instructions on obtaining information about the law. If there are additional complaints, the Department of Health may notify local law enforcement officials or the Bureau of Liquor Enforcement, which may investigate.
The owner, operator, manager or a lessee is responsible for ensuring compliance and may be fined from $250 to $1,000 for:
- Failing to post proper signage.
- Allowing smoking where it is prohibited.
In addition, anyone (whether a patron or employee) who smokes where smoking is prohibited may be fined $250 to $1,000.
As with other employment-related claims, an employer may not discharge, refuse to hire or retaliate against an employee because the individual exercises a right to a smoke-free environment.
How to comply
To help you comply, the Department of Health has collaborated with the Pennsylvania Alliance to Control Tobacco to develop a toolkit. You can download a free copy at: www.dsf.health.state.pa.us/health/lib/health/tobacco/2150ComplianceToolkit.pdf.
Businesses wishing to qualify for exemption under the CIAA must submit their requests in letters to the Department of Health, accompanied by verifiable supporting documentation.
Authors: Richard I. Thomas is a partner with Pepper Hamilton LLP in charge of the firm’s Pittsburgh office. He representsin labor, employment, occupational safety and health law, and other related litigation. He may be contacted at (412) 454-5826 or firstname.lastname@example.org. Robert A. Gallagher is an attorney with Pepper Hamilton LLP in the Pittsburgh office and concentrates his practice in litigation matters. He may be contacted at (412) 454-5018 or email@example.com.
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