Smoking in the Workplace in California
Many businesses have voluntarily addressed on-site smoking. For example, most restaurants now have a smoking or non-smoking section. Some restaurants don’t allow their patrons to smoke at all.
The concerns about the dangers of smoking applies to employers and workers as well. California does have laws on when and where employees can smoke and what accommodations employers must make.
California’s laws apply to employers with more than 5 employees. There are exceptions such as designated lobby areas, banquet rooms during non-food service times, truck-cabs if nonsmokers aren’t present, large warehouses with less than 20 workers, medical research sites where smoking is part of the research, private residences unless the home is used for family day care, and other special cases. The core California requirements are:
- The company can’t knowingly allow smoking in an enclosed workspace.
- The employer can designate that the whole work location is non-smoking.
- Employers can designate certain break rooms for just smokers but these rooms must be in a non-work area. If a room is designated a smoke room, then the employer can’t require that the nonsmoker enter the room. Designated smoke rooms must be properly ventilated with a fan so the smoke leaves the building – instead of being recirculated to other parts of the building.
- If the employer offers break rooms to smokers, then the employer must also offer the nonsmokers a break room.
- Employers with 5 or fewer employees can allow smoking in certain designated areas if all the employees agree, there are no minors involved, and there is no need for a nonsmoker to enter that designated area.
Employers are not required by California law to have a written policy or oral policy on smoking. Some cities, towns, and other governmental entities may have their own requirements. While California does not mandate that there be a policy, employers can voluntarily create their own smoking policy.
Employers can’t fire or discriminate against an employee for smoking during nonworking hours if the smoking is off the employer’s premises. Stephen Danz & Associates represents workers who have been fired or discriminated against because they engaged in a lawful activity – smoking offsite after-hours. Workers who smoke in designated breakrooms may and who are fired or discriminated against for following company policy may have a strong case too. These cases often include back pay and statutory damages.
Employers who knowingly allow smoking in non-approved break rooms can be subject to fines. Local agencies can fine up $500 for a third offense. Cal/OSHA can also impose fines if there are more than 3 violations in a given year. These fines can be up to $7,000 for general violations. Willful and serious violations can yield fines up to $70,000. Compliance includes posting clear and prominent “No Smoking” signs.