A Summary of Michigan's Smoking Ban: Considerations for Employers

May 6, 2010

On May 1, 2010, Michigan’s new smoking ban, also known as the Dr. Ron Davis Law, went into effect. The ban applies to employers, and there are several considerations to take into account in preparing the workforce.

Background

On December 18, 2009, Governor Jennifer Granholm signed the Dr. Ron Davis Law. The law makes Michigan the 38th state to limit smoking in public places, including government buildings, workplaces, bars and restaurants.

Who is Required To Comply with the Smoking Ban?

Michigan’s smoking ban prohibits individuals from smoking in a public place, at the meeting of a public body or in a food establishment. The law also requires state and local government agencies or private persons who own, operate, manage or are in control of a public place to make a reasonable effort to prohibit individuals from smoking in the public place.

All “places of employment” are considered “public” under the law. Therefore, this law applies to nearly all employers, subject to a few limited exceptions.

Additionally, as a preexisting requirement under Michigan’s smoking ban, an individual may not smoke in a child care institution, child care center or on property that is under the control of the child care institution or child care center.

Where Is Smoking Banned?

A “place of employment” is defined as an enclosed, indoor area that contains one or more work areas for one or more persons employed by a public or private employer. It does not include a home office if the only employee is the owner or a motor vehicle. It also does not include work performed outside of an enclosed area.

A “public place” also includes private establishments that are enclosed, and indoor areas used by the general public at an educational facility, retirement home, hospice, hospital, arena, theater, museum, concert hall. A separate section of the law also prohibits smoking in food establishments, including smoking on outdoor patios, decks or rooftops where food and drink are served to the public.

There are two explicit exemptions to Michigan’s smoking ban. One exemption is for a casino in existence on May 1, 2010. If the casino qualifies, then it may allow smoking in the gaming area of the casino.

The casino must still comply with the law for all other areas of the casino, such as casino bars and restaurants that are not within the gaming area. The law does not apply to casinos operated under the federal Indian Gaming Regulatory Act.

The second exemption is for cigar bars and tobacco specialty retail stores (including hookah bars) in existence on May 1, 2010. There are several steps that such facilities must take to qualify for the exemption.

How Is The Smoking Ban Enforced?

There is a detailed complaint procedure for investigating a violation of the law. If a local health department receives a complaint that an employer is not following the law’s requirements, it will first contact the business to determine the validity of the complaint and whether further investigation is needed. It will be important for the business to timely and adequately respond to the complaint. A business that does not do so may find itself subject to a site visit by the local health department which will note any evidence of violations. An
administrative fee may be assessed for the site visit. Depending on the outcome of the site visit, the department may then initiate enforcement procedures.

If compliance is achieved during the complaint investigation procedure, the department will close the complaint. The goal is compliance, not citations. However, if compliance is not achieved during the investigation procedure, the person, business, or state or local governmental agency that violated the law will be subjected to a fine of not more than $100 for the first violation and not more than $500 for a second or subsequent violation.

A food service establishment risks the additional penalty of an order from the local health department to cease food service operations until compliance is achieved.

In addition to the investigation procedure and fines, a covered establishment is exposed to the potential of a lawsuit from a private party, within 60 days after the private party used the establishment. The private party’s only recourse is an injunction, not monetary damages.

What Should Employers Do To Comply With the Law?

Michigan’s smoking ban expressly requires the person in control of a public place, food service establishment, casino, hotel, motel or other covered workplace to:

• Clearly and conspicuously post “no smoking” signs or the international “no smoking” symbol at the entrances to and in  every building or other area where smoking is prohibited under the law. This is required even if the establishment was previously smoke-free. An employer may have multiple entrances which require posting. Signs may be downloaded at www.michigan.gov/smokefreelaw.

• Remove all ashtrays and other smoking paraphernalia from anywhere that smoking is prohibited under the law.

• Inform individuals that are smoking in violation of the law that they are in violation of state law and subject to penalties.

• For food service establishments, refuse to serve an individual smoking in violation of the law.

• If an individual is seen smoking in violation of the law, they should be told to stop. If they refuse, ask them to leave the premises.

Additionally, an employer or food service establishment may not retaliate against an employee or applicant for employment who exercises his or her rights under the law. For example, if a supervisor smokes in his or her office in a covered workplace, the employer may not take adverse action against an employee for complaining about it.

It is unclear what effect the new state law may have on the validity of local smoking ordinances. Furthermore, there will be no regulations issued to explain the smoking ban further. Therefore, employers should remain aware of legal developments in this area to ascertain how the courts, state departments, and local health departments may interpret the law.

Moreover, while the law does not require employers to create a nosmoking policy for employees, employers should have such a policy. This policy will further an employer’s argument that it engaged in a reasonable effort to prohibit individuals from smoking in the workplace. The policy should advise employees on the restrictions on smoking, their right to complain without retaliation, and the possible discipline for violation of the policy.

Employers that have employees in states other than Michigan should also be aware of the smoking bans and other statutes in those states. Some states have smoking bans, similar to Michigan, that prohibit smoking in the workplace. Some other states, however, prohibit employers from taking adverse action against employees for smoking. Notably, these states tend to only prohibit an employer from restricting an employee’s ability to smoke when the employee is outside of the workplace and off-duty.

Finally, employers should also train their employees on the new requirements, particularly where the employees will deal with customers that wish to smoke in violation of the law.

 

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