Anti-Smoking Ordinance Creates Areas of Concern For Employers

August 2005

On Thursday, August 11, 2005, the Louisville/Jefferson County Metro Council passed an ordinance that prohibits smoking within most buildings within Metro Louisville.  The Ordinance becomes effective November 15, 2005.  The purpose of this update is to review the Ordinance in general, and to discuss some areas of concern the Ordinance creates for employers.

The Ordinance is structured such that smoking is prohibited in all buildings within Metro Louisville, unless one of approximately nine exceptions is met. For the most part, the exceptions allow smoking:

While the Ordinance is directed mainly at indoor smoking, it does prohibit outdoor smoking near the entrance of a building that results in smoke “entering the building through entrances, windows, ventilation systems, or other means.” 

Thus, to summarize, at the large majority of typical office buildings, factories, and other enclosed work locations, smoking will be prohibited: (1) outside the immediate entrance of the building; and (2) inside the building, unless such smoking is limited to an “enclosed smoking area.”  An enclosed smoking area is an area: (a) less than ½ the total square footage of the building, and (b) “physically separated” and “independently ventilated” from the remaining non-smoking areas of the building.

Areas of Concern:

Posting Requirements.  The Ordinance creates certain posting obligations.  If an employer chooses to completely prohibit smoking within its building, then it must post “No Smoking” signs or symbols.  If an employer chooses to allow smoking, it must post a sign indicating that smoking is only allowed in the enclosed smoking area.  These posting requirements are set out in detail in the Ordinance, and should be reviewed to ensure compliance.

Enforcement.  Employers have an affirmative obligation to ensure the smoking prohibitions are not violated, i.e. that no one (employee or customer) smokes near the entrance such that smoke comes into the building, and that no one smokes inside the building, except in an enclosed smoking area.   Fines for failing to ensure the Ordinance is followed range from $50 to $500, per offense.

Anti-Retaliation.  The Ordinance prohibits an employer from discharging, refusing to hire, or in any manner retaliating against a person who “exercises their rights” under the Ordinance.  This is not at all clear, but appears to mean that an employer cannot retaliate against an employee who complains of illegal smoking.

Union Issues.  The Ordinance also creates an area of concern if an employer’s work force is unionized and if the employer has allowed smoking in its facility in the past.  In such a situation, it would be prudent to discuss any change with the union prior to implementation.  And even with such discussions, if an employer chooses not to build an enclosed smoking area and completely prohibits smoking, then the union is likely to file either a grievance or an unfair labor practice charge, or both.  The defense to such a grievance or unfair labor practice charge will depend on the language of the relevant labor agreement, the parties’ past practice, the parties’ bargaining history, and, the cost of building an enclosed smoking area.

In conclusion, although the Ordinance is likely to be challenged in court, it will most likely be upheld as valid.  Employers, therefore, should take steps within the next 90 days to ensure compliance with the Ordinance.    If you have any questions or concerns about coming into compliance with the Ordinance, we invite you to contact any member of our Labor and Employment Department.

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