One of Indiana’s newest laws, Ind. Code § 7.1-5-12-1 will become effective on July 1st and will outlaw smoking statewide. “Smoking” is defined as the use of cigarettes, cigars, pipes, or other “lighted tobacco smoking equipment.” Smoking will be prohibited in the following locations:
- Public places;
- Places of employment; and
- Within 8 feet of any public entrance to a public place or place of employment.
A “public place” is defined as “an enclosed area of a structure in which the public is invited or permitted.” A “place of employment” is an “enclosed area of a structure where people are employed.” But it excepts a private vehicle. Most employers are covered. All restaurants and any bars located within the restaurants are covered.
Limited exemptions from coverage are provided for:
- Freestanding bars and taverns;
- Horseracing facilities;
- Off-track betting facilities;
- Certain private and fraternal clubs;
- Businesses located in private residences where all employees also reside;
- Cigar and hookah bars (but cigarettes are prohibited here, as well);
- Retail tobacco stores;
- Cigar manufacturing facilities; and
- Cigar specialty stores.
What Employers Must Do:
- Inform every current and prospective employee that smoking is banned at the place of employment;
- Remove any ashtrays or other smoking “paraphernalia”;
- Post “conspicuous” signs at each public entrance reading: “State Law Prohibits Smoking Within 8 Feet of this Entrance” (or similar language);
If the “Place of Employment” is also a “Public Place,” the Owner, Operator, Manager or the Person in Charge Must:
- Post conspicuous signs that read “Smoking is Prohibited by State Law” or similar verbiage;
- Ask anyone smoking to stop; and
- “Remove or cause to be removed” anyone who refuses to stop smoking. (Exactly how this is to be accomplished is not specified. But we recommend non-violent means.)
- Make certain that any designated smoking areas are outside the radius around any doors to the facility (the state statute says 8 feet, but if your locality has a regulation with a larger exclusion area, you must use the larger area);
- Obtain the required posters and post them at the doors, as well as inside the facility if it is a public place. Approved signs are available from the Indiana Alcohol and tobacco Commission’s website: www.in.gov/atc. The signs at this website, though, mention only the state-mandated 8 feet. If your local ban has a wider area, use the distance in the local ban. The signs may contain additional language indicating where smoking is and is not allowed; and
- Consider adopting a new policy or revising an existing policy in order to comply with the requirement of notifying employees and applicants. There is no specific form of written notice required. Employment applications may be modified to include a “smoke free” notice.
Enforcement and Penalties
- The Indiana Alcohol and Tobacco Commission has primary enforcement authority;
- State and local health departments, health and hospital corporations, the division of fire and building safety, and law enforcement agencies may also enforce the ban;
- Agents from any of the above agencies may enter and inspect the premises to ensure compliance; and
- Violators commit a Class B infraction, meaning a fine of up to $1,000; three or more unrelated violations are considered a Class A infraction, raising the ante to a maximum of $10,000.
Employers may not discharge, refuse to hire, or retaliate in any way against anyone for reporting a violation or exercising any right under the law. The referenced penalties apply to any conduct in violation of the act. But there is no individual right of action.
Indiana Counties, Cities, Towns or Other Governmental Units May Adopt Stricter Policies
The new law will be the minimum standard. It specifically notes that more restrictive laws and ordinances may be adopted. For example, Marion County modified the “Marion County Smoke Free Ordinance” effective June 1, 2012 to extend the ban to freestanding bars and taverns. It also defined “smoking” to include electronic cigarettes.
Also, Vanderburgh County and the City of Evansville adopted smoke free ordinances covering employers and public places in 2007. Parts of those ordinances are more restrictive than the new state law. For example, the ordinances require a distance of at least 10 feet from any smoke free environment for any designated smoking area.
But You May Not Discriminate Against Employees and Applicants For Off-Duty Tobacco Use
An existing law, Ind. Code § 22-5-4-1 to 4, prohibits employers from such discrimination.
Contact Bamberger attorney Michael J. Cork at [email protected] or 317-464-1594 for further information about Indiana’s smoking ban or other employment issues.
Author: Michael Cork (bio)
Email: [email protected]