No Smoking, and/or Vaping at Work Laws (Labor Code §6404.5)

Under Lab C §6404.5, no employer may knowingly or intentionally permit, and no person may engage in, smoking of tobacco products in an enclosed space at a place of employment.  Does this apply to vaping?  Why not?  The potential penalties for violations include a fine of up to $500 for each violation for repeat offenders. Lab C §6404.5(j), and maybe worse from a creative PI lawyer! The employer must have a policy and posted “No smoking” signs at each entrance, or smoking is permitted in designated areas of the building, and a sign stating “Smoking is prohibited except in designated areas” See Lab C §6404.5(c); 8 Cal Code Regs §5148.  The employer also has to ask smoking nonemployees to stop smoking in the enclosed workplace. But the employer doesn’t have to physically remove the nonemployee or ask him to stop smoking if doing so would pose a risk of physical harm to the employer or any employee. Lab C §6404.5(c)(2). See 8 Cal Code Regs §5148.

But there are exceptions to the no smoking at work laws in Labor C §6404.5(d):

• Private smoking lounges attached to tobacco retailers;
• Tobacco shops;
• Hotel rooms designated for smokers and designated areas in hotel lobbies;
• Bars and other establishments that are owner-operated and have no employees; and
• Warehouses exceeding 100,000 square feet that have fewer than 20 employees.
• Breakrooms which are designated smoking if separate (Labor Code § 6404.5(d)(13)(A)–(D))

Small businesses with 5 or less employees also have flexibility to allow smoking where all of these four conditions are met (Lab C §6404.5(d)(14)(A)–(D)):

1. The smoking area is not accessible to minors;
2. All employees who enter the smoking area freely consent to allow smoking;
3. Air from the smoking areas is exhausted directly outside by an exhaust fan and not recirculated to other parts of the building; and
4. The employer is in compliance with any ventilation standard or other standard utilizing appropriate technology adopted by the Occupational Safety and Health Standards Board or the federal Environmental Protection Agency.

The simple answer is, don’t allow smoking and post signs and include in your employee handbook no smoking.