Smoking in the Workplace Law Summaries

The District of Columbia's smoking discrimination in employment law is located in the District of Columbia Court Rules Annotated at Title 7, Subtitle H, Ch. 17, Subch. I. The full text of the law is available at Employment Practices Guide 9-21,350.01 . The state's smoking in the workplace law, also located in Title 7 of the District of Columbia Court Rules Annotated, was extensively revised by Act 276, L. 2005, enacted January 31, 2006, effective April 3, 2006.

DEFINITIONS

"Place of employment" means an enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including work areas, employee lounges, restrooms, conference rooms, classrooms, employee cafeterias, hallways, and vehicles owned by a private employer, if the vehicle is used by more than one person, and excludes a private residence, unless it is used as a child care, adult day care, or health care facility (Act 276, L. 2005, enacted January 31, 2006, effective April 3, 2006).

"Public place" means an enclosed area to which the public is invited or in which the public is permitted, including banks, educational facilities, health care facilities, laundromats, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, nightclubs, retail service establishments, retail stores, shopping malls, sports arenas, taverns, theaters, and waiting rooms, and excludes a private residence, unless it is used as a child care, adult day care, or health care facility (Act 276, L. 2005, enacted January 31, 2006, effective April 3, 2006).

COVERAGE

All employers are covered under the District's antidiscrimination law. The District's smokefree workplace law generally applies to all places of employment and public places.

EXCEPTIONS

See also WHAT THE EMPLOYER MUST DO below.

Bona fide occupational qualifications. --Bona fide occupational qualifications may permit discriminatory behavior (Sec. 7-1703.03).

WHAT THE EMPLOYER MUST DO

Discrimination. --Employers may not refuse to hire, discharge, or discriminate with respect to compensation, terms, conditions or privileges of employment because an individual uses tobacco or tobacco products (Sec. 7-1703.03).

Smokefree workplace law. --The Department of Health is authorized to conduct inspections of all places of employment and public places to ensure that the activity of smoking in such places, which is hereby prohibited, is not taking place, except that (Act 276, L. 2005, enacted January 31, 2006, effective April 3, 2006):

(1) Between the enactment of the Department of Health Functions Clarification Amendment Act of 2005, passed on 2nd reading on January 4, 2006 (Enrolled version of Bill 16-293), and January 1, 2007, the smoking prohibition set forth in this section shall not apply to a brew pub, club, nightclub, or tavern as those entities are defined in D.C. Official Code Sec. 25-101 or the bar and bar area of a restaurant. This exception shall not apply to an indoor restaurant table of a restaurant, as defined in D.C. Official Code Sec. 25-101.

(2) After January 1, 2007, the exception described in item (1) just above shall expire and smoking shall be prohibited in all places of employment and public places at all times.

The places described just above shall be required to post signs pursuant to Sec. 5 of the District of Columbia Smoking Restriction Act of 1979, effective July 12, 1979 (D.C. Law 3-22; D.C. Official Code Section 7-1704), and in accordance with regulations issued pursuant to the 1979 act or any other District law (Act 276, L. 2005, enacted January 31, 2006, effective April 3, 2006).

Exemptions. --The following places shall be exempt from the smokefree workplace law (Act 276, L. 2005, enacted January 31, 2006, effective April 3, 2006):

(1) A retail store that is used primarily for the sale of tobacco products and accessories in which the total annual revenue generated by the sale of non-tobacco products or accessories is no greater than 25% of the total revenue of the establishment; provided, that it does not share space with any other establishment;

(2) A tobacco bar;

(3) An outdoor area of a restaurant, tavern, club, brew pub, or nightclub;

(4) A hotel room or motel room rented to one or more guests;

(5) A medical treatment, research, or nonprofit institution where the activity of smoking is conducted for the purpose of medical research or is an integral part of a smoking cessation program; and

(6) Theatrical productions.

Penalties. --An employer or person who willfully violates the requirements of the District's smokefree workplace law by (Act 276, L. 2005, enacted January 31, 2005, effective April 3, 2006):

(1) smoking in a prohibited area shall be subject to a fine of not less than $100 or more than $1,000; subsequent offenses shall be subject to a fine of not less than $200 or more than $1,000;

(2) obscuring, removing, defacing, mutilating or destroying any sign posted in accordance with the smokefree workplace law shall be subject to a fine of $500; or

(3) failing to post or maintain warning signs describing the prohibited activity and failing to notify a person observed to be smoking to stop the activity, as required by this subsection, shall be subject to a fine of $500; each day that a violation continues shall constitute a separate offense.

Economic hardship waiver. --The Mayor may grant an economic hardship waiver from the requirements of the smokefree workplace law; provided, that prior to the granting of a waiver, the applicant establishes, to the satisfaction of the Mayor, that compliance with the law has caused or will cause undue financial hardship (Act 276, L. 2005, enacted January 31, 2005, effective April 3, 2006).

Notwithstanding any other provision of law, places of employment and public places where smoking is permitted due to an economic hardship waiver shall (Act 276, L. 2005, enacted January 31, 2005, effective April 3, 2006):

(1) Have been in existence on or before January 1, 2007;

(2) Not permit smoking in an area that exceeds 25% of the total area, if the place of employment or public place is a restaurant as defined in D.C. Official Code Sec. 25-101; and

(3) Be subject to conditions or restrictions as may be necessary to minimize the adverse effects of smoking and shall be consistent with the general purpose of the smokefree workplace law.

Employee rights and protections. --Places of employment and enclosed public places that permit smoking pursuant to the smokefree workplace law shall not require employees to work in smoking areas provided that an employee requests to work solely in nonsmoking areas (Act 276, L. 2005, enacted January 31, 2005, effective April 3, 2006).

An employee who is aggrieved by a violation of this subsection shall have a private cause of action against the owner, manager, or person in charge of the place of employment or public place. An employee shall pursue and exhaust all remedies available pursuant to any collective bargaining agreement, grievance procedure, or other established means of resolving employer-employee disputes to resolve a violation of this subsection prior to commencing a civil action (Act 276, L 2005, enacted January 31, 2005, effective April 3, 2006).

An owner, manager, or other person responsible for a place of employment or public place that permits smoking under this part shall not (Act 276, L. 2005, enacted January 31, 2005, effective April 3, 2006):

(1) Require an employee to work in a smoking area; provided, the employee requests to work in the nonsmoking area only;

(2) Discharge or otherwise discriminate against any employee with respect to compensation or any other term, condition, or privilege of employment on the basis that the employee or applicant requested to work in a nonsmoking area; or

(3) Discharge, refuse to hire, or in any manner retaliate against an employee, applicant for employment, or customer because that employee, applicant, or customer exercises any rights afforded by the smokefree workplace law or reports a violation of the law.

An employee who is aggrieved by a violation of this section shall be entitled to recover damages, including lost or back wages or salary. The court may allow the prevailing party a reasonable attorney's fee as part of the costs (Act 276, L. 2005, enacted January 31, 2005, effective April 3, 2006).

ENFORCEMENT

See also WHAT THE EMPLOYER MUST DO, above.

Charge (antidiscrimination law). --Anyone aggrieved by a smoking discrimination violation may commence a private action against the responsible party. However, the individual must exhaust all remedies available under any collective bargaining agreement, grievance procedure, or other established means of resolving employer-employee disputes, prior to commencing the action (Sec. 7-1703.03).

POSTING

See WHAT THE EMPLOYER MUST DO, above.

PENALTIES

See also WHAT THE EMPLOYER MUST DO, above.

An employer who has violated the smoking discrimination in employment law may be required to pay to the aggrieved individual lost or back wages, damages as specified by the court, and reasonable attorney's fees (Sec. 7-1703.03).

This is a summary of Smoking in the Workplace Laws in the District of Columbia.