Smoking ban to impact businesses

January 4, 2010
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On Friday, Dec. 18, 2009, Gov. Jennifer Granholm signed into law a bill that prohibits smoking in most public places, including bars, restaurants and government buildings, and in private employment facilities. The new law takes effect May 1, 2010.

Employers with an "enclosed indoor area that contains one or more work areas for one or more persons" must be smoke free. Home offices and motor vehicles are not covered. Thus, telecommuters and truck drivers are free to continue smoking on the job. Also exempt are casino gaming floors (casino bars and restaurants are not exempt), as well as certain cigar bars and specialty tobacco retail stores in existence on May 1, 2010. Casinos operated under the federal Indian Gaming Regulatory Act are exempt from all state laws, including the smoking ban.

The new law treats food service establishments separately. With limited exceptions, the term "food service establishment" means any establishment where food or drink is served to the public. The smoking ban is not limited to indoor areas. An outdoor patio where food or drink is served would have to be smoke free. But employees should be able to smoke outside a food service establishment in an area where food or drink is not served.

Anyone in control of a public place, a place of employment, a food service establishment, or a casino covered by the new law must make a reasonable effort to prohibit individuals from smoking, and:

Clearly and conspicuously post "no smoking" signs or the international "no smoking" symbol at the entrances to and in every building or other area where smoking is prohibited;

Remove all ashtrays and other smoking paraphernalia from anywhere smoking is prohibited;

Inform individuals smoking in violation of this new law that they are in violation of state law and subject to penalties;

If applicable, refuse to serve an individual smoking in violation of the law;

Ask an individual smoking in violation of the law to refrain from smoking and, if the individual continues to smoke, ask him or her to leave.

The new law prohibits retaliation against any employee or applicant for employment who exercises his or her rights under the law. For example, if a supervisor smokes in his or her own office, the employer may not take any adverse action against an employee for complaining about it.

The Michigan Department of Community Health has the authority to enforce the new law by levying fines and pursuing compliance both administratively (by issuing a citation) and in court (by filing a lawsuit). Penalties for violating the new law include a $100 civil penalty for the first instance and not more than $500 for second and subsequent violations. Food service establishments violating the new law may be shut down until they comply.

Finally, any person alleging a violation may file a civil action to force the alleged violator to comply with the new law. This is injunctive relief only (no money damages or recovery of attorney fees specified), and the person bringing the suit must show they used the public place, child caring institution, or child care center within 60 days before the civil action is filed. This private civil suit does not appear to apply to enforcement at food service establishments.

Although the final version of the new law deleted the legal requirement for employers to have a no-smoking policy, we still recommend that you have such a policy advising employees of the restrictions on smoking, their rights to complain without retaliation, and a system (penalties) to enforce the policy within the workplace.

Pat White and Jeff Gray are members of Varnum LLP’s Labor and Employment Practice Group. This advisory has been prepared by Varnum LLP for informational purposes only and does not constitute legal advice.

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