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The New Michigan No Smoking Law: What Every Employer Must Know

Presented to The American Society of

Employers

April 23, 2010

Joseph R. FurtonNemeth Burwell, PC

www.nemethburwell.com

MCL 333.12603: The New Michigan No Smoking Law

� On December 18, 2009, Michigan became the 38th state to pass a general smoking ban, which takes effect May 1, 2010:

� “An individual shall not smoke in a public place or at a meeting of a public body, and a state or local governmental agency or the person who owns, operates, manages, or is in control of a public place shall make a reasonable effort to prohibit individuals from smoking in a public place.”

--MCL 333.12603

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� “Smoke” - The burning of a lighted cigar, cigarette, pipe, or any other matter or substance that contains a tobacco product.

� “Public Places” -

� Indoor areas owned and operated by the government;

� Areas not owned or operated by the government, but used by the general public for certain specified purposes; and

� A place of employment (unless otherwise exempt).

� “Place of Employment” - an enclosed indoor area that contains a work area for one or more people employed by a public or private employer.

MCL 333.12601: Definitions

Who Is Covered?

� Any areas controlled by a state or local government agency

� Restaurants

� Bars

� Hotels

� All public and private employers where at least one employee is performing work for the employer

� An enclosed, indoor area such as:

� An education facility

� Nursing homes

� An auditorium

� An arena

� A theater

� A museum

� A concert hall

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Who Is Covered?

� Restaurants are treated separately under MCL 333.12905:

� The smoking ban applies to an outdoor patio where food or drink is served.

� But employees are permitted to smoke outside a food service establishment, in an area where food or drink is not served.

Who Is NOT Covered?

� Cigar bars

� Tobacco specialty retail stores

� Casino gaming areas

� However, casino bars and restaurants are not exempt

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� “Place of Employment” does not include:

• Home Office: “A structure used primarily as the residence of the owner or lessee that is also used as an office for the owner or lessee and for no other employees”

• “A food service establishment that is subject to section 12905”

• “A motor vehicle” --MCL 333.12601(o)

Who Is NOT Covered?

Employer Obligations

� Employers must make a “reasonable effort” to prohibit individuals from smoking in their place of employment.

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Employer Obligations

� The owner, operator, manager, or person having control of a public place, a food service establishment, or a casino shall do all of the following:

1. Post a “no-smoking” sign or the “no smoking” symbol at each entrance to and in every building;

2. Remove all ashtrays and smoking paraphernalia;

3. Inform individuals who are smoking that they are violating the law and subject to penalties;

4. Refuse to serve an individual smoking in violation of the law;

5. Ask an individual smoking in violation of the law to stop, and, if the individual refuses, ask that individual to leave the premises.

--MCLA 333.12603(2)

Employer Obligations

� Employers may designate outdoor areas where employees can smoke.

� Employers are NOT required to provide employees with smoking breaks.

� Employers are NOT required to report smoking violations to any police or governmental authority.

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Affirmative Defense

� It is important for employers to take the

previously mentioned steps because it may

provide a good faith defense to violations of

the Act.

--MCLA 333.12603(3)

Anti-Retaliation Provision

� Anti-retaliation provisions protect employees from discharge in retaliation for exercising legally protected rights in the workplace.

� MCLA 333.12606: An employer or a food service establishment shall not take any retaliatory or adverse personnel action against an employee or applicant for employment on the basis of the individual’s exercise of or attempt to exercise his or her rights under this part with respect to place of employment or part 129 with respect to food service establishments.

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Michigan Whistleblowers’ Protection Act, MCL 15.362

� The Michigan Whistleblowers’ Protection Act protects employees who report or are about to report to a public body suspected or known violations of local, state or federal laws, regulations or rules.

� Under the Act, employees are also protected if they participate in any hearing, investigation or other legal proceeding conducted by a court or public body upon request of the public body.

Anti-Retaliation/Whistleblower

� The plaintiff must establish the following for a claim of retaliation:

� Participation in a protected activity (employer had knowledge);

� Adverse employment action; and

� Causal link between the protected activity and the adverse action.

� To constitute an “Adverse Employment Action” the plaintiff must show that a reasonable employee or job applicant would have found the employer’s action materially adverse, which means that a reasonable employee would have been dissuaded from making a complaint or exercising his/her rights.

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Enforcement

� Enforced by the Department of Community Health, which can authorize local health departments to carry out enforcement.

Penalties

� Violators are subject to a civil fine of not more than $100 for a first violation and not more than $500 for a second or subsequent violation.

� Individuals and entities are permitted to bring a civil action for appropriate injunctive relief.

• No money damages or recovery of attorney fees are specified and the person bringing the suit must show they used the public place within 60 days before the civil action is filed.

• The private civil suit does not appear to apply to enforcement at food service establishments.

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Penalties

� Against Employers:

� There are no direct penalties authorized against an employer whose employees smoke in violation of the law.

� However, employers do have specific obligations to meet under the new law and both the Michigan Department of Community Health and local health departments are authorized to seek enforcement of the law by actions under the Public Health Code.

� In addition, any person who visits a public place where smoking occurs in violation of the law can pursue injunctive relief within 60 days.

Unionized Employers

� Labor law generally requires an employer to bargain with a union representing its employees on “no smoking” restrictions.

� Therefore, while all unionized employers are legally required to have a smoke-free workplace, they may have a duty to bargain over the terms and conditions of the no-smoking policy.

� For example, employers may need to bargain over disciplinary procedures for violations of the policy or whether there will be designated areas outdoors for smoking.

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Effect of Local Ordinances

� Currently, the new law will not preempt stricter county, city, and municipality ordinances.

� For example: Grand Rapids banned smoking in all enclosed workplaces, excluding bars and restaurants and also smoking within 10 feet from a public building.

� The University of Michigan Campus will not allow smoking anywhere on its campus, including outdoors, by July 1, 2011.

� It is advised that employers follow the stricter local ordinances until this issue is decided by the courts.

No-Smoking Policy

� It is recommended, but not required, that employers implement a no-smoking policy as part of their “reasonable effort” to prohibit smoking in the workplace.

� The policy should:

� Advise employees of the restrictions on smoking;

� Advise employees of their rights to complain without retaliation; and

� Provide a system/penalties to enforce the policy within the workplace.

� A sample no-smoking policy is attached to this presentation. � Of course, your policy should be tailored to individual company

practices and procedures.

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The Americans with Disabilities Act, 42 USC § 12101, et seq.

� The ADA applies to a qualified person with a “disability” and prohibits an employer, with 15 or more employees, from discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment.

� Concerns:

� There is a possibility that the recent ADA Amendment Act (ADAAA) could make nicotine addiction a protected disability.

� If smoking is considered a protected disability, employers should not make employment decisions, such as hiring and firing, based on the fact an employee smokes.

� Will employers have to make reasonable accommodations for smoking under the ADA?

The Americans with Disabilities Act, 42 USC § 12101, et seq.

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Conclusion

� Before May 1st employers should do the following:

� Remove ashtrays and other smoking paraphernalia from the workplace.

� Obtain “no smoking signs” and place them at each entrance to the workplace.

� Determine if there is a stricter local no smoking requirement that must be followed.

� Implement a “no smoking” policy.

� Train employees and/or supervisors on how to handle confronting individuals who are in violation of the law.