Ohio Smoke Free Workplace Act FAQs by My Employment Lawyer

By Neil Klingshirn


What is the Smoke Free Workplace Act?

Ohio voters passed statewide Issue 5 on On November 7, 2006. Issue 5 created the Smoke Free Workplace Act. The state of Ohio began to enforce the Act in the spring of 2007.

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What does the The Smoke Free Workplace Act prohibit?

The Act prohibits “smoking” in a “public place” or a “place of employment.” This article will only focus on the prohibition against smoking in a place of employment. However, the Smoke Free Workplace Act’s prohibitions on smoking in a public place are generally the same as those for a place of employment.

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What is considered “smoking?”

"Smoking" means inhaling, exhaling, burning, or carrying any lighted or burning tobacco or other plant. Smoking does not include the burning of incense in a religious ceremony. Therefore, an employee in a hurry on a smoking break cannot finish exhaling on the way back into the building.

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What is a place of employment?

A place of employment includes enclosed areas, such as the employer’s physical building and areas immediately adjacent to the entrances or exits from those buildings. It covers garages, storage areas, restrooms, warehouses and even vehicles. A place of employment does not, however, include an outdoor patio.

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What is an outdoor patio?

An outdoor patio is a structure with a roof and two or fewer side walls, or a structure with no roof, regardless of the number of side walls.

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Can employees smoke in the building after hours or when no one else is there?

No. The Smoke Free Workplace Act prohibits smoking in a workplace without regard to the time of day or the presence of other employees.

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What other obligations does an employer or business have under the Smoke Free Workplace Act?

First, a business owner and employer must prevent tobacco smoke from entering any area in which smoking is prohibited through entrances, windows, ventilation systems, or other means. In other words, if you smell tobacco inside of your building, use your nose to sniff it out and make sure it does not get back in.

In addition, an employer cannot retaliate against an individual, whether or not an employee, for complaining about or reporting a violation of the Smoke Free Workplace Act.

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Does an employer or business have to do anything else, like post signs?

Yes. Employers need to post "No Smoking" signs or the international "No Smoking" symbol conspicuously at each entrance. All signs shall contain a telephone number for reporting violations. In addition, all ashtrays and other receptacles used for disposing of smoking materials must be removed from any area where smoking is prohibited.

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What else should an employer or business do to comply with th Act?

Be aware of the weather. The Smoke Free Workplace Act pushes smokers away from the shelter of a building and out in to the weather. When the weather gets bad, employees are naturally going to seek shelter from it. Thus, if you could provide a tarp or cover on poles it would provide shelter and be lawful under the Act. In addition, you will need to watch for cheating by smokers, especially on cold or rainy days. If an employee stands under the eaves of a building to get out of the rain and smoke gets in through a window, it is a violation of the Act.

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What if an employee refuses to stop smoking in or near the building?

A refusal to comply with the Smoke Free Workplace Act is grounds for discipline. Repeated refusals would probably merit discharge, if evenly applied. In addition, employees can be fined (up to $100 per violation) by the state if they fail to stop smoking (where prohibited) when asked by a supervisor or another employee.

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Are there any exemptions to the Smoke free Workplace Act?

Yes. Areas where smoking is not prohibited include:

       1. Private residences, except during the hours of operation when employees or customers are in the building.
       2. Designated rooms for sleeping in hotels, motels and other lodging facilities.
       3. Family-owned and operated places of employment in which all employees are related to the owner, but only if the enclosed areas of the place of employment are not open to the public, are in a free standing structure occupied solely by the place of employment, and smoke from the place of employment does not migrate into an enclosed area where smoking is prohibited.
       4. Any nursing home, but not for the benefit of employees and only in a designated indoor smoking area separately enclosed and separately ventilated.
       5. Certain retail tobacco stores.
     6. Outdoor patios.
       7. Private clubs, subject to a number of significant restrictions.

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What are the penalties for violations for the Smoke free Workplace Act?

As mentioned earlier, employees will be subject to the Act’s penalties for violating it, as are the businesses that employ them. These include fines as high as $2,500 per violation. The state can waive these fines where compliance or other mitigating factors are shown, or it can double the fines if the violation was willful. Again, however, the State of Ohio has indicated that it will not immediately begin enforcing the Act.

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Have an Employment Law question?

Contact Neil Klingshirn

Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist
Independence, OH
Phone: 216-382-2500