December 2006: Smoke-Free Employment

       Scenario:  It is mid-January, freezing cold and snowing, two of your associates are outside the service department where they are smoking.  After a few minutes another employee complains to you regarding the smoking by the service bay door.  What are your legal obligations under Ohio's new Smoke Free Law?

         First and foremost, the voters passed the Smoke Free Law in the November elections.  In essence, the law prohibits smoking in any environment, public or private, if there is access to it by the general public.  As you are aware, several other states have enacted similar laws in the past, and Ohio is just one in the long line of states that have followed precedent in the other states.  However, there are still several questions that employers need to address in order to enforce the Smoke Free Law.  Further, once the enforcement section of the Law has been determined, there will be a toll free number where an individual can call and, according to the law, the police or another enforcement agency could show up and arrest the perpetrator, which could ultimately lead to an assessment of a penalty against the business.  This begs the question, if you have a disgruntled employee, is he going to continually call the toll free number and have the place of business harassed by unwarranted complaints? 

         First, you must post no smoking signs in conspicuous places throughout the building.  This means each and every facility that you have on your property. The most appropriate place would be on all entrance/ exit doors to the building. The sign must state "No Smoking" or include the international "No Smoking" symbol which is the circle with a red line drawn through it and must also contain the telephone number to report violations. 

       Who is covered under the law?  Every person, public employers, non-profit entities, independent contractors, for-profit employers and volunteers are all covered.

        The business cannot designate an employee smoking area; cannot have a smoking lounge; cannot have an outdoor smoking port since the law prohibits smoking in any type of enclosed area which consists of walls on three or four sides and a roof.  Further, smoking by a doorway is prohibited and, although the law is not clear, there is a general consensus that smoking anywhere within 30-40 feet of the door will be a violation of the law.  Of course, you can designate the smoking area; however, it has to be completely separated from the building and cannot be in an enclosed facility.  The law applies to both working and nonworking hours, even if the facility is empty.

         Further, employees are prohibited from smoking in company-owned vehicles.  This means any demonstrator, parts truck or any other vehicle that is utilized by the dealership for business purposes; this includes the prohibition of smoke entering the vehicle. As crazy as it sounds, the law could be interpreted from prohibiting an individual from smoking in their private vehicle if they use the vehicle for business purposes.  Can you imagine being a professional over-the-road trailer truck driver and having to comply with this law?

        Further, your associates cannot smoke in the restrooms or in a service or parts department including your body shop. 

        The law goes into effect on December 7, 2006.  At the present time, the penalties are that a business can be fined anywhere from $100.00 to $2,500.00 per violation with increases for repeat offenders in any two-year period.  If you refuse to comply with the law, you may incur the penalty of $100.00 per day, per violation.

       In summary, you must prohibit smoking in all areas of your business; in all doorways and overhead doors; you must prevent smoke from entering into the building from doors, refrigeration systems, windows, or any ingress or egress points.  You must post no smoking signs at all appropriate conspicuous places.  You must remove any and all ashtrays or designated smoking receptacles.  Good luck on the enforcement!

 Holiday Cheer

          It is the holiday season again, and, as I have stated in the past, the best policy is not to be a "Scrooge" but always to remember that the dealership is responsible for the actions of its employees.  Injuries or accidents that occur as a result of too much "holiday spirit" on the dealership premises or at parties that are sponsored by the dealership may become the basis for workers' compensation claims.  Also, accidents that occur off the premises but are directly attributable to a dealership's holiday party or are caused by an employee's overindulgence with the dealership's knowledge may expose the dealership to legal liability.

       As always, these are highlights of the law and are not to be construed as containing the entire law.  This is not a legal opinion.  Contact your attorney if you need specific information or advice.

        ®Robert A. Poklar, 2006

Having been a Chevrolet dealer, Robert A. Poklar's business background and experience in the automotive industry aid him in his representation of numerous Ohio automotive dealerships.  He also represents after-market service companies, trade organizations, dealers advertising associations and corporations.  Pursuant to certain ethical standards, this may be construed as advertising.