eLABORate: New Municipal Ordinance Affects Current Smoking Policies For The Workplace

September 06, 2012

Until recently, employers in the City of Mobile desiring to create a smoking policy for the workplace had only the provisions of an Alabama statute to offer guidance. The Alabama Clean Indoor Air Act, in effect since September 1, 2003, is elective in that it grants employers the option to designate any place of employment, or any portion thereof, as a nonsmoking area. Ala. Code § 22-15A-1 et seq. If implemented, such a policy is required to contain minimal provisions that permit any employee to designate his/her work space as a nonsmoking area and provide for the prohibition of smoking in common work areas unless, in certain circumstances, a majority of the workers who work in that area agrees that a smoking area should be designated. Section 22-15A-5(a)(1) & 6.

Inside the city limits for the City of Mobile, the Alabama Clean Indoor Air Act will soon be augmented by a new municipal ordinance passed on August 21, 2012. Mobile, Ala. Ordinance 27-022 (Aug. 21, 2012) ("the Ordinance"), which goes into effect at midnight, October 1, 2012, will have wide-reaching effects on employment smoking policies in Mobile. While the Alabama Clean Indoor Air Act offers the bare minimum standards for employment smoking policies, the Act permits municipalities to impose more restrictive provisions as deemed proper. Such is the case in Mobile. The Ordinance, no longer permitting mere election of a smoking policy for the workplace, mandates employer enforcement of a ban on smoking in places of employment located within the City limits.

The Ordinance will impact employment smoking policies in two distinct ways. First, the Ordinance indirectly impacts workplace policies through its general provisions prohibiting smoking in defined "enclosed public spaces" including, but not limited to, places such as theaters, health care facilities, restaurants, and property owned or leased by the City. Section 2. For those who work in and around the prohibited areas set forth in the Ordinance, the provisions indirectly affect their governing employment policies as well.

Second, and more directly, Section Seven of the Ordinance impacts employment smoking policies by specifically prohibiting smoking in all enclosed facilities within places of employment without exception. A "place of employment" has been defined as "any enclosed indoor area under the control of an employer to which employees have access during the course of employment, including but not limited to work areas, public offices, employee lounges, employee restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction sites, temporary offices and vehicles. A private residence is a place of employment if it contains certain places of business, such as child care, adult care center, or health care facilities." Section 1.

For purposes of the Ordinance, an employer is defined as "any person, partnership, corporation, association or other entity that employs one or more persons." Id. An "employee" is defined as "any person who is employed for compensation, profit or who volunteers his or her services for an employer." Id.

In the coming month, it will be necessary for Mobile employers to examine the impact of this Ordinance on their current smoking policies and revise applicable employee handbooks and/or policies to ensure proper compliance. Employers should be mindful that the Ordinance creates certain obligations with respect to communicating the new policy to their employees and new hires.