IBA: Indiana’s No-Smoking Law and Potential Penalties to Employers for Failure to Adhere

By Christopher S. Drewry,

Drewry Simmons Vornehm LLP

The IndyBar Labor & Employment Section posts articles written by Executive Committee members on its indybar.org section page throughout the year. Check out one article below and visit the section webpage at http://www.indybar.org/interest-groups/labor-employment-law/.

Back in March (and mixed in with other notable legislative changes like Right to Work and Restricting Access to Conviction Records), Governor Mitch Daniels signed into law a bill imposing statewide restrictions on smoking in public places. This law went into effect on July 1, 2012, and will affect all Indiana employers. While employers likely have already taken certain actions under this new law, the failure to follow the provisions could result in steep penalties, up to and including $10,000 in fines.

If you recall, smoking is now prohibited in most Indiana workplaces (exceptions being places like riverboats, horse racing facilities and other gaming facilities, retail tobacco stores, and bars that do not employ individuals under the age of 18 or allow individuals under the age of 21, other than employees, to enter, among other things). The law requires employers to prohibit smoking in areas within eight feet of a public entrance to a “place of employment” or a “public place.”

Additionally, since July 1st, employers have had additional obligations beyond merely prohibiting smoking. First, all employees and prospective employees must be informed of the smoking prohibition applying to the place of employment. This could be accomplished by including it in the employee handbook, or for prospective employees, by inserting a statement about the policy in the employment application. Next, employers are required to remove any and all ashtrays and smoking paraphernalia from all areas of public places and places of employment where such smoking is prohibited. Lastly, employers must post “conspicuous signs” at each public entrance which says “State Law Prohibits Smoking Within 8 Feet of this Entrance.” For those businesses that fall under the exception to this prohibition, they too must post conspicuous signs that read “WARNING: Smoking Is Allowed In This Establishment” or some other similar language.

While an individual who smokes where prohibited commits a Class B infraction (or up to a Class A infraction with at least three prior infractions), employers too may be penalized where they fail to abide by the three aforementioned proactive obligations. State agencies, including the State Department of Health, county health departments, and law enforcement agencies can issue fines ranging from $1,000 for a first violation up to $10,000 if there are three violations, and employers may also be enjoined for a failure to abide by the provisions of the law.

Finally, one other potential issue for employers in dealing with the prohibition of smoking is the fact that Indiana also has a statute prohibiting discrimination against smokers in employment and hiring. Further, the Americans with Disabilities Act may come into play for individuals who suffer diseases as a result of smoking.

Ultimately, it is important that employers be aware of the smoking ban and to implement the proper procedures in adherence of the rules. Additionally, it is important to note that the state law specifically authorizes local governments to enact more restrictive ordinances. Therefore, employers must follow the requirements of the more restrictive local ordinances over the state ban. Whether it involves the employer’s upfront obligations with the state law or other local ordinance, the smoking policies that have been put into place, or the enforcement of rules, counsel should take notice of the potential issues that can arise with the no-smoking law and ensure that their clients are in compliance.•