Foster Swift Employment, Labor & Benefits E-News
April 20, 2010
Effective May 1, 2010, smoking will be banned in all public places, including places of employment. A place of employment includes any enclosed indoor area where one or more employees perform work. Exempted from the smoking ban are the Detroit casinos, cigar bars and tobacco retail stores, home offices, and motor vehicles.
Smoking under the new law means the burning of a lighted cigar, cigarette, pipe, or any other matter or substance that contains a tobacco product, but does not include chewing tobacco.
How the Law Affects Employers. The new law prohibits smoking anywhere in an employer’s indoor facilities, including private rooms, enclosed rooms or offices occupied exclusively by a smoker.
Employer's Obligation. Employers are not required to report smoking violations to any police or government authority, but an employer must:
- have clearly posted “no smoking” signs (or the internationally recognized “no smoking symbol”) at the entrances to and in every building or work area covered by the smoking ban;
- remove all ash trays and other smoking paraphernalia from any work area covered by the smoking ban;
- inform any employee or other individual (such as a customer or vendor visiting the workplace) who is smoking in violation of the law that he or she is violating state law and is subject to penalties for doing so;
- if applicable, refuse to serve an individual smoking in violation of the law; and
- ask an individual smoking in violation of this act to refrain from smoking and, if the individual continues to smoke in violation of this act, ask him or her to leave the public place, food service establishment, or nonsmoking area of the casino.
The law is silent on how it is to be implemented in workplaces covered by collective bargaining agreements - labor law generally requires an employer to bargain with a union representing its employees on smoking restrictions.
Employers may not take retaliatory or adverse personnel action against any employee or applicant who seeks to enforce his or her rights under the law. Though not clearly defined, presumably this means that employees are protected for bringing complaints to the employer’s attention about co-workers smoking in violation of the law.
There is no obligation for employers to adopt a written "no smoking" policy—such a requirement was considered by the Legislature and ultimately rejected.
However, employers should consider a carefully crafted policy which:
- explains the smoking ban and the civil fines that may be imposed for violators; and
- provides notice that employees who smoke in violation of the law will be subject to discipline, up to and including discharge.
Additionally, given the obligation to confront employees smoking in violation of the law, employers should also consider training supervisors on effective ways to handle such situations.
Penalties for Violating the Smoking Ban. Penalties for individual offenders are clear. Any person who smokes in violation of the law is subject to a $100 fine for the first violation, and fines of up to $500 apply for any subsequent violations.
Penalties for employers/businesses are less clear. The largest aspect of the law facing state health officials is determining who will police establishments to ensure patrons are not smoking in violation of the law. As of April 5, 2010, the extent of a local health department's enforcement responsibility - including whether it would be issuing the tickets or collecting the fines - has not been determined. According to the State Department of Community Health spokesman, State officials plan to use education as the primary means of enforcement, and issue tickets only as a last resort.
Under the law, both community and local health departments are authorized to seek enforcement of the law, and an individual alleging a violation of the law may bring a civil action for appropriate injunctive relief, if the person has used the place within 60 days before the civil action is filed.