The New Michigan No Smoking Law:
What Every Employer Must Know
Presented to
The American Society of
Employers
April 23, 2010
Joseph R. Furton
Nemeth 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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MCL 333.12601: Definitions
“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.
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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Who Is NOT Covered?
“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)
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.
The Americans with Disabilities
Act, 42 USC § 12101, et seq.
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?
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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.
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