The Smoke-Free Workplace Act

On Nov. 7, 2006, the voters of Ohio approved State Issue 5, known as “The Smoke-Free Workplace Act,” thereby enacting Chapter 3794 of the Ohio Revised Code. The law became effective Dec. 7, 2006. The law required the Ohio Department of Health (ODH) to adopt rules to enforce the law. The ODH started this process in late January, and the final rules (Ohio Administrative Code Chapter 3701-52) have been filed and will be effective May 3, 2007. After that date, you can expect more rigorous enforcement of the smoking ban.  This Communiqué updates the OSBA Communiqué dated Dec. 1, 2006 to provide information about the ODH’s final enforcement rules. 

The new state law is much broader in scope than the federal law currently in effect that bans smoking in buildings where educational services are regularly provided to children. In brief, here is what the new law does:

1. Bans smoking in public places and places of employment, including at entrances.
2. Requires posting of “no smoking” signs in public places and places of employment.
3. Requires removal of ashtrays and receptacles from areas where smoking is banned.
4. Prohibits retaliation against anyone for exercising any right under the new laws.
5. Requires the ODH to adopt rules to implement the new laws.
6. Places significant responsibilities on employers and proprietors of public places to carry out the new laws.

The new rules require an employer to take reasonable steps to prevent smoke from entering prohibited areas, including asking people to stop smoking in those areas. The proprietor of a public place or place of employment must also identify himself or herself upon the request of the ODH. 

Why are the rules now becoming effective?

Although the new law became effective Dec. 7, 2006, the ODH cannot assess fines until final rules are adopted. The ODH is required to adopt rules within six months of the law’s effective date, thus, by approximately June 7, 2007. The rules were finalized this spring, and become effective May 3, 2007. Because of the lag between enactment of the law and adoption of the rules, there has been an awkward period with regard to enforcement.  Presumably, the law itself may be enforced even without the adoption of regulations. As of May 3, the ODH or its designee will have complete enforcement authority.

Following are the details of what the new law requires.

What areas are affected?

The smoking ban applies to enclosed areas, defined as places with a roof and at least three walls. For school districts, the following areas will certainly be affected: educational buildings, office buildings, bus garages, warehouses, interiors of motor vehicles (see “vehicles” below), stadium press boxes and concession stands. Proprietors of public places and places of employment must not permit smoking in these areas, and must not allow tobacco smoke to enter these areas. The ban applies to buildings, as well as “… areas directly or indirectly under the control of the proprietor immediately adjacent to locations of ingress or egress … ” This likely means the area immediately outside doors that lead to all of the school structures mentioned above. Neither the law nor the rules establish an exact distance from entrances beyond which smoking is permitted.  The distance should be sufficient to ensure that tobacco smoke does not enter areas where smoke is prohibited through entrances, windows, ventilation systems or other means.

What areas are NOT affected?

Areas where the smoking ban does NOT apply in school districts include open-air stadiums, sidewalks, parking lots, lawns and outdoor patios (defined as an area either (1) enclosed by a roof and walls on not more than two sides or (2) with no roof, regardless of the number of walls). 

Does the law change current local smoking bans?

It may. The new law is to be liberally construed to accomplish its purpose of protecting workers and the public from the health hazards of second-hand tobacco smoke. The law sets minimum standards, and thus prevails over less restrictive state or local laws or regulations. This would also be true for school district policies that are less restrictive than the law.

Nothing in the new law permits smoking where it is restricted by other laws and regulations. In other words, if there was a less restrictive smoking ban in place on Dec. 7, 2006, the new state law prevails over it. If there was a more restrictive ban in place by municipal ordinance or a local school district policy, the ordinance’s or policy’s more restrictive provisions apply in addition to state law standards.

The law also specifically permits owners to ban smoking in places not covered by the law, so school districts may ban smoking in stadiums or on any or all property owned or controlled by the school district.

Signs required

Building owners or employers must post “no smoking” signs. The signs can be either “no smoking” signs (which may be in black and white) or the international “no smoking” symbol (which must be in red). The signs must be posted at all pedestrian points of transition from areas where smoking is not regulated to areas where it is regulated. It would be advisable to post signs at all points of pedestrian ingress and egress. 

The rules require that all signs include the telephone number designated by the ODH for reporting violations, (866) 559-OHIO (6446). The rules do not specify a size for the signs, instead requiring the signs to be a “sufficient size as to be clearly legible to a person of a normal vision” and “at a height and location easily seen by a person entering the public place or place of employment.” Signs posted in vehicles must be attached to the dashboard, each passenger door window or other visible areas. Appropriate signs can be downloaded from the ODH Web site at www.odh.ohio.gov.

Ashtrays and receptacles

Ashtrays and similar receptacles must be removed from any area where smoking is prohibited by the law. However, the rules allow an employer to provide an ashtray or other receptacle for the purpose of disposing of smoking material prior to entering a public place or place of employment. The law does not require the removal of receptacles where local policies go beyond the law, such as at entrances to football stadiums or patios or in parking lots. The rules allow an employer to provide and store ashtrays in places where smoking is not prohibited. The rules make an exception for ashtrays and other receptacles if they are of historic or architectural value and were affixed prior to Dec. 7, 2006. These items may remain, as long as they are not used for disposing of smoking materials. 

Vehicles

The law includes vehicles in the definition of  “place of employment.”  The rules define a “vehicle” to include an enclosed motor vehicle registered by the Ohio Bureau of Motor Vehicles when it is occupied by one or more nonsmoking persons at the same time and while used for business purposes, a registered motor vehicle that is part of a motor pool or fleet and shared by nonsmoking employees, and a registered motor vehicle used for public mass transit.  This indicates that smoking is prohibited in personal vehicles only when the vehicle is used for business purposes and occupied by one or more nonsmokers.  Smoking is prohibited in fleet vehicles when shared by nonsmoking employees. It is unclear whether “shared” means occupied at the same time or having multiple drivers use the vehicle at different times.

How are violations reported?

The ODH has established an address, an e-mail address and a telephone number to report violations. Reports of violations may be made anonymously. Under the rules, when an alleged violation has been reported, the ODH will notify the proprietor or individual with a written notice of the report of violation and afford the employer the opportunity to refute the report in writing. The ODH may investigate all complete reports of violation or refer the reports to a designee for investigation, which can include telephone or on-site interviews, and on-site investigations by the ODH or its designee. Telephone or on-site interviews, and on-site investigations, must be conducted before a proposed civil fine is issued. The ODH has a two-tiered administrative process for proposing and reviewing findings of violations and fines, based on the number of prior violations the proprietor or individual has had in the previous two years. If the school district receives a notice of the report of a violation, the school district should seek legal counsel.

Are there penalties for violation of the law?

Yes. The law specifies that upon a first offense, the proprietor of a public place, an employer or an individual will receive a warning. A second or subsequent offense will result in a fine as determined by the ODH or its designee. The fines can range from $100 to $2,500. Under the new rules, the director has designated the local city and general health district boards of health to enforce Revised Code Chapter 3794 and established a process by which other government entities may be designated to enforce the new law. The rules establish the following fine schedule: 

The rules establish that upon a final finding of violation, each day that violation continues is a separate violation, subject to further fines. The rules allow the ODH to double the fines imposed for intentional violations. 

Under the rules, the ODH has the discretion to reduce or waive a fine upon consideration of several factors, including: (1) a good-faith effort by the proprietor to prevent the violation; (2) the proprietor’s level of substantial compliance with the law; (3) the proprietor’s compliance history; (4) the proprietor’s good-faith cooperation during the investigation; and (5) a showing of good cause to support reducing or waiving the fine by the proprietor. 

The ODH has established a toll-free hot line for information about the new Smoke-Free Workplace Act. It is (866) ODH-7654. If you have questions about the new smoking ban, please contact your board counsel or OSBA’s Division of Legal Services.
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The information in the Communiqué is intended as general information.  It should not be relied upon as legal advice.  If legal advice is required, the services of an attorney should be obtained.

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© Ohio School Boards Association, 2007