Smoking in the Workplace Law Summaries

Smoking in the Workplace Law Summaries

Pennsylvania, Smoking in the Workplace Law Summaries

Pennsylvania's Clean Indoor Air Act (No. 2008-27 (S. 246), L. 2007)), enacted June 13, 2008, takes effect September 11, 2008.

DEFINITIONS

“Public place” means an enclosed area which serves as a workplace, commercial establishment or an area where the public is invited or permitted. The term includes (Sec. 2, No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008):

1. A facility which provides education, food or health care-related services.

2. A vehicle used for mass transportation. This paragraph includes a train, subway, bus, including a chartered bus, plane, taxicab and limousine.

3. A train station, subway station or bus station.

4. A public facility. This paragraph includes a facility to which the public is invited or in which the public is permitted and a private home which provides child-care or adult day-care services.

5. A sports or recreational facility, theater or performance establishment.

“Workplace” means an indoor area serving as a place of employment, occupation, business, trade, craft, professional or volunteer activity (Sec. 2, No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

WHAT THE EMPLOYER MUST DO

Clean Indoor Air Act.- Except as set forth under Sec. 3(b) below, an individual may not engage in smoking in a public place. Nothing in this act shall preclude the owner of a public or private property from prohibiting smoking on the property (Sec. 3(a), No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

Exceptions.- Sec. 3(a) just above shall not apply to any of the following (Sec. 3(b), No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008):

1. A private home, private residence or private vehicle unless the private home, private residence or private vehicle is being used at the time for the provision of child-care services, adult day-care services or services related to the care of children and youth in State or county custody.

2. Designated quarters: (i) within a lodging establishment which are available for rent to guests accounting for no more than 25% of the total number of lodging units within a single lodging establishment; or (ii) within a full service truck stop.

3. A tobacco shop.

4. A workplace of a manufacturer, importer or wholesaler of tobacco products; a manufacturer of tobacco-related products, including lighters; a tobacco leaf dealer or processor; or a tobacco storage facility.

5. Any of the following residential facilities: (i) a long-term care facility regulated under 42 CFR 483.15 (relating to quality of life). This subparagraph shall not apply if 42 CFR 483.15 is abrogated or expires. (ii) a separate enclosed room or designated smoking room in a residential adult care facility, community mental health care facility, drug and alcohol facility or other residential health care facility not covered under subparagraph (i). (iii) a designated smoking room in a facility which provides day treatment programs.

6. Subject to Sec. 3(c)(2), a private club, except where the club is: (i) open to the public through general advertisement for a club-sponsored event; or (ii) leased or used for a private event which is not club-sponsored.

7. A place where a fundraiser is conducted by a nonprofit and charitable organization one time per year if all of the following apply: (i) the place is separate from other public areas during the event. (ii) food and beverages are available to attendees. (iii) individuals under 18 years of age are not permitted to attend. (iv) cigars are sold, auctioned or given as gifts, and cigars are a feature of the event.

8. An exhibition hall, conference room, catering hall or similar facility used exclusively for an event to which the public is invited for the primary purpose of promoting or sampling tobacco products, subject to the following: (i) all of the following must be met: (A) service of food and drink is incidental. (B) the sponsor or organizer gives notice in all advertisements and other promotional materials that smoking will not be restricted. (C) at least 75% of all products displayed or distributed at the event are tobacco or tobacco-related products. (D) notice that smoking will not be restricted is prominently posted at the entrance to the facility. (ii) a single retailer, manufacturer or distributor of tobacco may not conduct more than six days of a promotional event under this paragraph in any calendar year.

9. A cigar bar.

10. A drinking establishment.

11. Unless otherwise increased under this paragraph, 25% of the gaming floor at a licensed facility. No earlier than 90 days following the effective date of this section or the date of commencement of slot machine operations at a licensed facility, whichever is later, a licensed facility shall request a report from the Department of Revenue that analyzes the gross terminal revenue per slot machine unit in operation at the licensed facility within the 90-day period preceding the request. If the report shows that the average gross terminal revenue per slot machine unit in the designated smoking area equals or exceeds the average gross terminal revenue per slot machine unit in the designated nonsmoking area, the licensed facility may increase the designated smoking area of the gaming floor in proportion to the percentage difference in revenue. A licensed facility may request this report from the Department of Revenue on a quarterly basis and may increase the designated smoking area of the gaming floor accordingly. At no time may the designated smoking area exceed 50% of the gaming floor. The board shall have jurisdiction to verify the gross terminal revenues included in the report to ensure compliance with the requirements under this paragraph. Movement of the licensed facility from a temporary facility to a permanent facility shall not require the licensed facility to revert to the minimum percentage set forth under this paragraph.

12. A designated outdoor smoking area within the confines of a sports or recreational facility, theater or performance establishment.

Conditions and qualifications for exceptions.- In order to be excepted under Sec. 3(b) just above, a drinking establishment, cigar bar or tobacco shop must submit a letter, accompanied by verifiable supporting documentation, to the department claiming an exception under Sec. 3(b). Exception shall be based upon the establishment's books, accounts, revenues or receipts, including those reported to the Department of Revenue for sales tax purposes, from the previous year or stated projected annual revenues, which shall be verified within six months (Sec. 3(c)(1), No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

In order to qualify for the exception under item (6) just above, a private club must take and record a vote of its officers under the bylaws to address smoking in the private club's facilities (Sec. 3(c)(2), No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

Signage.- “Smoking” or “No Smoking” signs or the international “No Smoking” symbol, which consists of a pictorial representation of a burning cigarette in a circle with a bar across it, shall be prominently posted and properly maintained where smoking is regulated by this act, by the owner, operator, manager or other person having control of the area. A “Smoking Permitted” sign shall be prominently posted and maintained at every entrance to a public place where smoking is permitted under this act (Sec. 4, No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

Enforcement.- A complaint regarding a possible violation of this act shall be made to the appropriate law enforcement agency or to the Department of Health of the Commonwealth. A complaint to the department shall be made in one of the following manners (Sec. 5, No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008):

1. in writing.

2. by telephone call to the department's toll-free telephone number.

3. by an electronic submission to the department's regularly maintained Internet website.

A drinking establishment, cigar bar and tobacco shop shall make available all books, accounts, revenues, receipts and other information to the Department of Health, the Department of Revenue, state licensing agency or county board of health as necessary to enforce this act. All information submitted to the Department of Health, county board or other Commonwealth agency with enforcement duties under this act, including information to verify the on-site food consumption of a drinking establishment, shall be confidential and shall not be subject to the Right-to-Know Law (Sec. 5, No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

Violations.- It is a violation of this act to do any of the following (Sec. 6(a), No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008):

1. fail to post a sign as required by Sec. 4.

2. permit smoking in a public place where smoking is prohibited.

3. smoke in a public place where smoking is prohibited.

Any of the following shall be an affirmative defense to a prosecution or imposition of an administrative penalty under this act (Sec. 6, No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008):

1. When the violation occurred, the actual control of the public place was not exercised by the owner, operator or manager but by a lessee.

2. The owner, operator or manager made a good faith effort to prohibit smoking.

3. The owner, operator or manager asserting the affirmative defense shall do so in the form of a sworn affidavit setting forth the relevant information mentioned under items (1) and (2) just above.

For violations of Sec. 6(a) (above), there are Commonwealth administrative penalties, local administrative penalties, and criminal penalties (Sec. 6(c)-(e), No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

Retaliation.- A person may not discharge an employee, refuse to hire an applicant for employment or retaliate against an employee because the individual exercises a right to a smoke-free environment required under this act (Sec. 7, No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008).

Preemption of local ordinances.- Except as set forth in Sec. 11(b) just below, the following apply (Sec. 11(a), No. 2008-27 (S. 246), L. 2007, enacted June 13, 2008):

1. This act shall supersede any ordinance, resolution or regulation adopted by a political subdivision concerning smoking in a public place.

2. No political subdivision shall have the authority to adopt or enforce any ordinance, regulation or resolution which is in conflict with this act.

Section 11(a) just above shall not apply to a city of the first class. A city of the first class may not change or amend its ordinance to conflict with any provision of this act (Sec. 11(b), No. 2998-27 (S. 246), L. 2007, enacted June 13, 2008).