Smoke Free Environment Law and Legal Definition
The term smoke free environment is sometimes used indiscriminately to discuss both 100 percent smoke free areas as well as segregated and ventilated areas. A truly smoke free environment in a business is one in which no smoking is allowed within any company building or vehicle. Depending on the company, smoking may be permitted in certain outdoor areas designated for that purpose. In other companies, the smoke free policy prohibits smoking on any company property. Employees who smoke must abstain from smoking while at work or must leave company grounds to smoke. Other companies allow smoking in special rooms or areas dedicated to that purpose. For smoking areas within the building, a special and separate ventilation system must be installed in order to prevent smoke from leaking into other areas of the structure.
The concept of creating a smoke free workplace has gained many supporters over the last decades. As reported by the American Lung Association, a recent Gallup poll showed that 95 percent of Americans, smokers and non-smokers, believe companies should either ban smoking totally in the workplace or restrict it to separately ventilated areas. In a Centers for Disease Control (CDC) study published in JAMA, the number of respondents reporting that smoking was not allowed in public or work areas at their companies increased from 46.5 percent in 1992–93 to 63.7 percent in 1995–96. The CDC also noted that in 1999, 43 states and the District of Columbia had laws restricting smoking in governmental work areas. Eleven of these states completely prohibited smoking in these areas. Yet the CDC also noted that only one state (Utah) had achieved a CDC national health objective (under the Healthy People 2000 program) of reducing the prevalence of adult cigarette smoking to 15 percent or less. A more recent CDC study reported on in the American News Wire underscored the strong momentum across the country to pass comprehensive smoke-free workplace laws to protect everyone from secondhand smoke. But the study also shows that there is much further to go. At the end of 2004, 16 states still had no laws restricting workplace smoking, and many other states did not have comprehensive laws that cover all indoor workplaces, including restaurants and bars.
The CDC has established a series of national public health goals that it works to see met by the year 2010. With regard to smoking issues they are focused extensively on reducing the number of nonsmokers exposed to environmental smoke. There are specific objectives to increase the number of work sites that have smoking restrictions, and to address ETS in more restrictive clean indoor air laws. According to the CDC, the existence of smoke free work environments will increase the likelihood that affected employees will either reduce or eliminate cigarette use.
DEVELOPING AND IMPLEMENTING A SMOKE FREE WORK ENVIRONMENT
In addition to its impact on employee health and welfare, there are a number of costs associated with smoking. According to Lin Grensing-Pophal in HR Magazine, expenditures in the United States related to smoking equal roughly $72 billion every year. These include property loss from fires started by smoking products (over $500 million), work productivity loss ($40 billion), and the costs of additional tobacco-related cleaning and maintenance ($4 billion).
Despite the many reasons to help reduce the incidence of employee smoking, the implementation of a smoke free workplace policy needs to be considered carefully. Between the 1960s and the 1990s, the number of smokers in the U.S. dropped steadily. However, the number leveled off during the 1990s, despite increased numbers of smoke free work sites. Smokers have rights too, as has been proven by litigation attempts. Human resources director Arthur Friedson, quoted in HR Magazine, stated that developing a smoke free policy rooted in "the basic respect of one co-worker to another" can be most successful, from both an ethical and a legal standpoint.
Prior to establishing a smoke free policy, a company should investigate any existing local and state laws on smoking. Despite highly publicized trials and settlements between the federal government and tobacco companies, there is no federal oversight with respect to the institution of a smoke free environment. HR Magazine quotes a figure of over 560 local governments which have enacted ordinances dealing with the rights of nonsmokers. These tend to be stricter than state laws and generally address smoking in public areas such as restaurants, grocery stores, and malls.
On the other side, a careful review of Occupational Safety and Health Administration (OSHA) regulations, protections under the Americans with Disabilities Act (ADA), and state and local law with regards to the rights of smokers and nonsmokers is also warranted. Litigation in which a smoker claims that his or her addiction to tobacco is a disability covered by state and federal laws has occurred with more frequency, although not usually successfully. However, given that any litigation, successful or not, is an enormous burden both financially and emotionally for a small business, it is important to proceed carefully. Work closely with your lawyer to determine applicable laws and regulations.
It may also be helpful to determine how many other businesses in your area are addressing the issue of smoking in the workplace. This can serve as support for your own policies in the case of litigation. You can also get a good idea of what has been successful in other organizations in order to establish a smoke free environment of your own. Other sources for ideas on how to develop or update a nonsmoking policy include a report published by the CDC, Best Practices for Comprehensive Tobacco Control Programs, as well as organizations such as the American Cancer Society.
The most important factor in creating a smoke free business environment is having a solid understanding of the workforce. By factoring in the needs of each employee segment, smokers and nonsmokers, and achieving some "buy-in," a small business can reduce or avoid problems down the road. From the very beginning, the involvement of individual employees (again, smokers and nonsmokers alike) in the development of a nonsmoking policy is crucial. Be supportive of employee efforts to stop smoking as well. Many businesses have found the investment in or reimbursement for smoking cessation programs and tools to be money well spent. Some companies even provide a monetary award to successful quitters.
Depending on the elements of your policy, you may need to establish a designated area for smoking. Placing the area outdoors eliminates the expense of a separate ventilation system but may have undesired consequences such as longer break times, and possibly the additional expense of building a shelter, if this is needed.
Be sure to focus efforts on how employee habits, such as frequent breaks, impact an employee's job. In other words, keep policy and discussions steered toward job performance, rather than the issue of smoking. It is important to establish guidelines that impact all employees such as those regarding breaks and then enforce them on a consistent basis for the entire staff. Any discussions of violations to these guidelines should address the impact of employee actions on performance. Leave smoking out of the discussion entirely.
Once a small business has developed its nonsmoking policy, it should provide early notice of the policy, prior to implementation. This allows employees to consider the consequences of behavior and, if need be, to make efforts to quit smoking. At this time, the company should also publicize any assistance in quitting smoking, such as a cessation program or monetary rewards. It may be more successful to implement a smoke free policy in stages. For example, smoking might first be restricted to a designated area, then eliminated from company property entirely. However, the success of gradual implementation can vary from workplace to workplace.
Once established, a small business's smoke free environment should also take into account new employees. While there are no laws prohibiting discrimination against smokers, questioning prospective staff as to their smoking habits is ill advised. Not hiring smokers may be defensible for an organization such as the American Cancer Society, but not for most small employers. A more acceptable position is to alert candidates at the time of the interview to the small business's nonsmoking policy and its associated standards of acceptable behavior.
Finally, it is especially important for a small business to regularly revisit its smoking policy, along with other human resources policies. Local, state, and federal laws and regulations are in a constant state of flux over this issue. It pays to review these laws regularly and in conjunction with a legal advisor. The burden of litigation over such issues is a heavy one for a small business to bear. In addition, a shifting employee population may make some changes necessary. Seeking input from employees helps to both promote and refine the policy.
EFFECTS OF A SMOKE FREE ENVIRONMENT ON CUSTOMERS
The implications of a smoke free environment in small businesses such as restaurants, bars, and shops also extend to customers. For these types of businesses, local and state laws and regulations may also be more straightforward. Many states and municipalities already limit or eliminate smoking in the public areas of these businesses. In the state of California, for example, no smoking is permitted in any public establishment. California lawmakers alerted the public of the change six months prior to implementing this legislation to allow businesses time to address the issue in their workplace policies and to provide consumers with time to get used to the idea. There also may be legal issues to consider. According to an article in Business-First Columbus, the National Restaurant Association states that employers can be held liable if staff members become ill from second-hand smoke.
Other states require a public establishment to have both smoking and nonsmoking areas within a restaurant, with space and sometimes ventilation requirements for each. As noted with work environments, a separate ventilation system may be used to divert smoky air. Working with local authorities as well as reviewing policies from similar businesses in the area can help a small business to determine its needs.
If the institution of a smoke free environment at a small business is not tied to any governmental regulations or requirements that are already known by the general public, a small business should consider giving advance notice of the new policy to their customers. A simple posting at the door as well as personal verbal or written notice to regular clients can go a long way to ensure customers' responsiveness and compliance. Finally, in cases where customers ignore the policy, it is important to courteously but consistently administer it, even at the risk of losing those customers.
The implementation of a smoke free environment is a complex process for any small business. By using legal counsel to wade through the maze of pertinent laws and regulations, working with employees to develop a policy, and communicating the policy regularly to both employees and customers, a small business can ensure its efforts are successful.
BIBLIOGRAPHY
Bellotti, Mary. "Who's Taking the Hit?" Business Journal-Portland. 22 September 2000.
Cronan, Carl. "Cancer Society Offers 'How-To' Help On Smoking Policies." Tampa Bay Business Journal. 26 January 2001.
"DOD to Phase Out Smoking at Recreation Facilities." All Hands. August 2000.
Downey Grimsley, Kirstin. "Dumped, Stiffed and Delinquent." Washington Post. 31 May 2000.
Linn, Diane. "Ordinance 937: A Business-Friendly Smoking Ban." Business Journal-Portland. 22 September 2000.
Millar, Michael. "Health Benefits Justify Smoking Ban Job Losses." Personnel Today. 18 January 2005.
Pavilkey, Susan. "Clearing the Air." Business First-Columbus. 2 February 2001.
"Smoking Policies in the Workplace Fact Sheet." American Lung Association. Available from http://www.lungusa.org/site/pp.asp?c=dvLUK9O0E&b=36000. Retrieved on 31 May 2006.
"State-Specific Prevalence of Current Cigarette Smoking Among Adults and the Proportion of Adults Who Work in a Smoke Free Environment—United States, 1999." JAMA, The Journal of the American Medical Association. 13 December 2000.
Hillstrom, Northern Lights
updated by Magee, ECDI
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