Vaping-at-WorkLegislation passed this month will change some of the rules relating to smoking in the workplace and expand already-existing smoke-free workplace protections. These changes go into effect on June 9, 2016.

On May 4, Governor Brown signed a package of bills relating to smoking. In part, the new legislation will:

  • Treat the use of e-cigarettes and other nicotine-delivery devices, such as vaporizers, as “smoking” — thus extending existing smoking bans to cover such products.
  • Expand smoke-free workplace protections by getting rid of most of the existing exemptions that permitted smoking in certain work environments, such as bars, hotel lobbies, warehouse facilities and employer-designated smoking break rooms.
  • Expand the workplace smoking ban to include owner-operated businesses.
  • Raise the legal smoking age from 18 to 21, except for active military personnel.

Because these measures were enacted as part of a special session of the Legislature, they generally take effect the 91st day after the special session’s adjournment — June 9 in this case.

Other legislation passed as part of the package related to tobacco-retailer licensing fees and to expanding tobacco prevention funds to charter schools.

Background and General Rules

Existing law prohibits employers from knowingly or intentionally allowing tobacco products to be smoked at a place of employment or in an enclosed space. The existing ban on smoking in the workplace also covers nonemployees.

When you allow nonemployees to enter the workplace on a regular basis, you must take the following steps to comply with the statewide smoking ban:

  • Where smoking is prohibited throughout the building, a sign stating “No Smoking” must be posted at each entrance to the building.
  • Where smoking is permitted in designated areas of the building under one of the law’s limited exceptions, a sign stating “Smoking Is Prohibited Except in Designated Areas” must be posted at each entrance to the building.
  • Nonemployees who are smoking must be requested, where appropriate, to refrain from smoking. The law does not define when it is appropriate to make a request.

The law does not require you to:

  • Physically eject a nonemployee from the workplace.
  • Make a request to a nonemployee to refrain from smoking under circumstances involving a risk of physical harm to your employees.

Exemptions Eliminated

When the smoking in the workplace ban was first enacted, exemptions were put in place for certain employers and specified working environments. Amendments effective June 9, 2016, will eliminate most of those exemptions.

For example, the new legislation expands the workplace smoking ban to include owner-operated businesses. Before the smoking ban did not apply if you owned your own business and were the only person working there. That exception no longer exists; the law will now cover all employers, including owner-operated businesses.

An “owner-operated business” is one where the owner-operator is the only worker; the business doesn’t have any employees, independent contractors or volunteers.

The small employer exception was also eliminated. Right now, if you have five or fewer full- and part-time employees, you may permit smoking in enclosed areas if certain conditions are met, such as not allowing minors in the space and having proper ventilation. This exception will be eliminated on June 9.

Most exemptions for specific work environments, such as bars and taverns, hotel lobbies, banquet rooms and warehouse facilities, were also eliminated.

Importantly, the recent amendments eliminate the ability to have employer-designated smoking-break rooms. In the past, such smoking-break rooms were allowed if sufficient conditions were met. Employer designated smoking-break rooms are now prohibited outright.

A few exemptions will still remain. Smoking is still allowed in the following places:

  • Twenty percent of the guest room accommodations in a hotel, motel or similar transient lodging establishment. Under earlier legislation, the number was 65 percent.
  • “Private smokers’ lounges,” defined as any enclosed area in or attached to a retail or wholesale tobacco shop dedicated to the use of tobacco products, including cigars and pipes.
  • “Retail or wholesale tobacco shops,” defined as any business establishment in which the main purpose is the sale of tobacco products, including cigars, pipe tobacco and smoking accessories.
  • Cabs of motor trucks or truck tractors if no nonsmoking employees are present.
  • Theatrical production sites, if smoking is an integral part of the story in the theatrical production.
  • Medical research or treatment sites, if smoking is integral to the research and treatment being conducted.
  • Private residences, except for private residences licensed as family day care homes, during the hours of operation as family day care homes and in those areas where children are present.
  • Patient smoking areas in long-term health care facilities.

Vaping Also Prohibited Under New Rules

The new legislation also treats the use of e-cigarettes and vaping devices as “smoking” — thus extending existing workplace smoking bans to cover such products.

In addition, the federal Food and Drug Administration (FDA) announced this month that it was extending its authority over tobacco products to include “the regulation of electronic nicotine delivery systems (such as e-cigarettes and vape pens), all cigars, hookah (waterpipe) tobacco, pipe tobacco and nicotine gels, among others.”

Electronic cigarettes and other nicotine-delivery devices are now covered under California’s statewide ban on smoking in the workplace.

Best Practices

  • Review your existing workplace smoking policies to ensure compliance with the new law.
  • Remember: smoking-break rooms are no longer allowed.
  • Make sure that you take reasonable steps to prevent nonemployees from smoking in your workplace, as outlined in this article.
  • Consult legal counsel if you think an exemption might apply to your place of work.