Pennsylvania No-Smoking Law as of September 11, 2008

By Craig M. Brooks

Smoking was banned in almost all Pennsylvania workplaces, starting September 11, 2008. Pennsylvania’s Clean Indoor Air Act, first adopted in 1988 without any real teeth, has now been amended to ban smoking in most workplaces, as well as numerous other places such as public transit, indoor sports facilities, theaters, educational facilities, along with restaurants and nightclubs (albeit with various exceptions). This update highlights the main changes that went into effect September 11 for workplaces.

Key Points

Indoor (i.e., enclosed) places of work: The law bans the "carrying … of a lighted cigar, cigarette, pipe or other lighted smoking device" in the indoor or enclosed portions of almost all workplaces (some exceptions are noted below). This applies whether the employer owns, leases or otherwise has the right to use the facility. It also applies to facilities staffed by volunteers instead of employees.

Outdoor premises of employer: It is up to the employer whether to permit smoking on its outdoor grounds, and, if so, where (of course, while not covered by this law, an employer may also limit the length of any permissible smoke or other breaks).

Vehicles used for work related purposes: Smoking appears to be prohibited in employer-owned or leased vehicles but permissible in a vehicle owned by the employee (regulations may clarify this).

Signs: Employers are required to post and maintain prominent notices in their indoor facilities that smoking is not permitted. The sign must either state "No Smoking" or contain a no smoking symbol (i.e., a burning cigarette under a red circle with a diagonal bar across it). There are presently no specific requirements as to the number or exact locations of signs that must be used, just that they be prominently posted. The Department of Health has indicated that it is planning to adopt a workplace rights notice for employer posting – no word on when will this occur.

Retaliation: An employer or individual may not discharge, refuse to hire or otherwise retaliate against an employee or applicant because he/she exercises a right to a smoke-free environment under this law.

Additional Information

Exceptions from Coverage: the only few indoor workplaces exempted from the smoking ban are 1) tobacco leaf dealers, processors, or storage facilities; 2) enclosed, designated smoking rooms in a residential adult long term care facility, community mental health facility, drug and alcohol addiction treatment facility, or other residential healthcare facility and/or day treatment program; 3) a volunteer ambulance, fire, and rescue company that has been in existence at least 10 years; 4) a bar with food sales comprising no more than 20% of annual gross sales provided no one under age 18 is permitted, with grandfathered rights to continue smoking in enclosed areas adjacent to but separate from an eating area if it has separate ventilation and a separate outside entrance; 5) one-quarter of a casino gaming floor; or a 6) tobacco shop or cigar bar (with limits).

Enforcement/Penalties: Violations are summary offenses carrying a penalty of up to $250 for the first offense, $500 for the second violation within a year of the first fine or $1,000 within a year of receiving a second violation. Enforcement is the responsibility of either the appropriate law enforcement agency (e.g., local police) or the Pa. Department of Health (or the County Board of Health if so designated by that County), with the Pa. Department of Health taking complaints either in writing, via a toll-free phone number or on the Department’s web site. Both an employee and an employer may be held in violation for the same occurrence. An employee can be fined for smoking in an indoor workplace, while an employer can be fined for permitting smoking in the workplace and/or for failing to post a no smoking sign. An employer (or individual manager) can avoid conviction if it can prove it made a good faith effort to prohibit smoking (property owners may also defend that a lessee had the actual control of the premises involved). No county may adopt a conflicting regulation, except Philadelphia which may retain its stronger provisions (e.g., Philadelphia’s ordinance also prohibits smoking within twenty feet of entrances to buildings covered by the smoking ban). The Pa. Department of Health will issue regulations under this law at some future unknown date. Stay tuned in case these regulations further expand employer obligations.

Employer Action Items: Since an employer can avoid penalties under this law by showing that it made a good faith effort to prohibit smoking, several steps should be taken in this regard. A notice should be issued to employees in advance of the September 11, 2008 effective date informing employees that the new law’s smoking ban goes into effect then. In addition, employer policies, including an Employee Guidebook, should be revised to include notice of a ban on indoor smoking. Consideration should be given for whether and where outdoor smoking will be permitted. Also, supervisors and managers should be trained that not only employees and the employer, but also managers can individually be fined for permitting an employee to smoke in any indoor/ enclosed worksite. Managers should politely tell any employee seen smoking in an indoor workplace to stop immediately as required by Pennsylvania law. While the circumstances in which this occurs may make a difference, non-compliance by an employee following such a warning is probably best dealt with in two ways: a) considering calling the local police to enforce the law, and/or b) disciplining the employee for insubordination (which often means termination).

Please contact Craig M. Brooks, if you have any questions on the Pennsylvania No-Smoking Law or if you need assistance with compliance.