E-Newsletter

May 2010

Keeping the "Free" in Smoke-Free: Steps Employers Should Take to Avoid Fines Pursuant to Wisconsin's Indoor Smoking Ban

Keith E. Kopplin, Esq.

As the smoke clears from Fourth of July fireworks this year, it should also be clearing from virtually all places of employment in Wisconsin. That's because July 5, 2010 marks the effective date of Section 101.123 of the Wisconsin Statutes-commonly referred to as the Indoor Smoking Ban. That gives employers just over two months to amend their policies, post appropriate notices, and prepare to enforce the new law. Failure to do so could lead to fines and/or injunctive action against employers.

Signed by Governor Doyle on May 18, 2009, the Indoor Smoking Ban expressly prohibits smoking in, among other places, government buildings, taverns, restaurants, theaters, and lodging establishments. To be covered, however, such locations must meet the definition of an "enclosed place" set forth by the new law. As clarified by a recent amendment, an "enclosed place" is a structure or area with a roof, and more than two "substantial" walls - i.e., "a wall with no opening or with an opening that either does not allow air in from the outside or that is less than 25% of the wall's surface area." An outdoor screen room, for example, would likely not constitute an "enclosed place" due to the fact that virtually 100% of the surface areas of its walls permit air to flow in from the outside. In fact, as outlined by the interpretive rules proposed by the Wisconsin Department of Commerce, "[a] 0.011 gauge screen with an 18 by 16 mesh count is not a wall" for purposes of the new law. An outbuilding, on the other hand, such as a shed or garage, likely would meet the definition depending upon its design.

The law also prohibits smoking in any "place of employment," which is broadly defined as any enclosed place that employees normally frequent during the course of employment, including an office, a work area, an elevator, an employee lounge, a restroom, a conference room, a meeting room, a classroom, a hallway, a stairway, a lobby, a common area, a vehicle, or an employee cafeteria. It is worth noting that the definition includes a vehicle that employees normally frequent during the course of employment. To that end, even a company vehicle designated for a single employee's use could be subject to the smoking prohibition-regardless of that employee's personal smoking preference.

Among a handful of exceptions, the Indoor Smoking Ban does not apply to private residences, retail tobacco stores or tobacco bars that were in existence on June 3, 2009, or Tribal casinos and facilities. With respect to retail tobacco stores and tobacco bars, the new law provides revenue-based qualification standards, which further limit the exception. Specifically, a retail tobacco store must generate at least 75% of its gross annual income from the retail sale of tobacco products and accessories. Further, it cannot have "Class B" liquor or fermented malt beverage licenses. A tobacco bar, on the other hand, can serve alcoholic beverages, but must generate at least 15% of its gross annual income from the sale on the tavern premises of cigars and tobacco for pipes, other than items sold from a vending machine.

Individuals caught smoking in violation of the new law can be fined not less than $100, nor more than $250, for each violation. More significant for employers, the person who has ultimate control over the location at which smoking is prohibited can also be fined $100 per day for failing to take adequate steps to prevent unlawful smoking. Specifically, that individual must do at least the following to avoid the possibility of a fine:

1. Not provide matches, ashtrays, or other equipment for smoking at a location where smoking is prohibited;
   
   
2. Make reasonable efforts to prohibit persons from smoking at a location where smoking is prohibited by doing all of the following:
   1. Posting signs setting forth the prohibition and providing other appropriate notification and information regarding the prohibition;
      
      
   2. Refusing to serve a person, if the person is smoking in a restaurant, tavern, or private club; and
      
      
   3. Asking a person who is smoking to refrain from smoking and, if the person refuses to do so, asking the person to leave the location.
3. If a person refuses to leave a location after being requested to do so, the individual must immediately notify an appropriate law enforcement agency of the violation.
   

Although individuals with ultimate control over locations at which smoking is prohibited must be provided a warning prior to being issued a fine, and can only be fined a total of $100 per day for any and all violations of items 1 - 3 above, employers should act soon to ensure compliance with their obligations under the Indoor Smoking Ban. First, policies should be amended to reflect the prohibition on indoor smoking, and to clearly define where, and when, outdoor smoking by employees will be permitted. Although not specifically addressed by the Indoor Smoking Ban, employers should consider designating outdoor smoking areas that are out of view from main customer entrances, and that are a sufficient distance from other entrances to eliminate employee exposure to second-hand smoke. Employers must also ensure that any outdoor areas they designate for employee smoking do not constitute "enclosed spaces" under the law.

Second, any previously designated indoor smoking areas (e.g., break rooms, lounges, or cafeterias) should be re-purposed for smoke-free uses. Further, all matches, ashtrays, and other smoking equipment should be removed from all locations where smoking is prohibited. This would arguably include removing cigarette lighters from all company vehicles.

Third, appropriate signs should be prominently displayed to remind employees, customers, visitors, and guests of the prohibition on indoor smoking. In accordance with the new law, the Wisconsin Department of Commerce has proposed, by rule, that no smoking signs shall include the international "No Smoking" symbol, consisting of a pictorial burning cigarette enclosed in a red circle with a red bar across the cigarette. Employers should also distribute copies of any policy revisions regarding smoking to affected employees.

Fourth, employers should be prepared to enforce their policies, and the new law, as needed. To avoid incurring a fine, this includes taking at least those steps outlined above with respect to any individuals-employees, customers, visitors, or guests-smoking illegally. The Indoor Smoking Ban also expressly permits individuals with ultimate control over covered premises to take steps in addition to items 1 - 3, above, to ensure compliance with the new law, and to prevent persons from being exposed to individuals who are smoking. With respect to employers, such additional steps would include disciplining employees for violating any applicable smoking policies.

Fifth, and as always, employers should stay tuned. The Wisconsin Department of Commerce is still in the process of finalizing administrative rules to provide interpretive guidance for the Indoor Smoking Ban. If adopted, the current version of these rules would, among other things, arguably limit the places where smoking is permitted even further than the Indoor Smoking Ban itself, by providing an expansive definition of an "[e]nclosed indoor area."

If you have any questions regarding this or any other employment or labor law matter, contact Krukowski & Costello, S.C.'s educational services department at (414) 423-1330.