In 2016, changes to existing law were passed to further expand smoke free workplace protections.

The changes:

• Expand smoke-free workplace protections by getting rid of most of the existing exemptions that permitted smoking in certain work environments, such as bars, hotel lobbies, warehouse facilities and employer-designated smoking break rooms.
• Treat the use of e-cigarettes and vaping devices that contain nicotine as “smoking” — thus extending existing smoking bans to cover such products.
• Expand the workplace smoking ban to include owner-operated businesses and to eliminate the exception for employers with five or fewer employees who met specific conditions.
• Raise the minimum smoking age from 18 to 21, except for active military personnel.

You cannot knowingly or intentionally permit the smoking of tobacco products at a place of employment or in an enclosed space. This prohibition includes permitting nonemployees to smoke in an enclosed workplace. The law exempts some workplaces from these prohibitions, as discussed in “Exceptions to the Ban on Workplace Smoking” on this page. The number of exemptions was drastically reduced as a result of 2016 legislation.

The prohibition on knowingly permitting smoking in enclosed spaces in places of employment includes lobbies, lounges, waiting areas, stairwells, elevators and restrooms. It prohibits smoking inside public buildings including covered parking lots.2 The previous exemption for covered parking lots was eliminated as a result of 2016 legislation.

The smoking in the workplace prohibition covers all employers, including owner-operated businesses.

An “owner-operated business” is one where the owner-operator is the only worker; the business does not have any employees, independent contractors or volunteers. Before the 2016 legislation, if you owned your own business and were the only person working there, the smoking prohibition did not apply, but that exception no longer exists.

There is no exception for small employers. Under previous law, employers with a total of five or fewer full- and part-time employees could permit smoking in enclosed areas if certain conditions were met, such as not allowing minors in the space and having proper ventilation. This exception was eliminated in 2016.

Preventing Nonemployees From Smoking

When you permit nonemployees admission to the workplace on a regular basis, you must take the following steps to prevent liability for violating the statewide smoking ban when nonemployees smoke on the premises, including owner-operator businesses:3

• Where smoking is prohibited throughout the building, a sign stating “No Smoking” must be posted at each entrance to the building.
• Where smoking is permitted in designated areas of the building under one of the law's limited exceptions, a sign stating “Smoking is prohibited except in designated areas” must be posted at each entrance to the building.
• Nonemployees who are smoking must be requested, where appropriate, to refrain from smoking. The law does not define when it is appropriate to make a request.

The law specifies that it is not necessary, in complying with the law, to:

• Physically eject a nonemployee from the workplace.
• Make a request to a nonemployee to refrain from smoking under circumstances involving a risk of physical harm to your employees.

Exceptions to the Ban on Workplace Smoking

When the workplace smoking ban was first enacted, there were exemptions in place for specified working environments. 2016 amendments eliminated most of the specified exemptions that permitted smoking in certain working environments, such as bars and taverns, hotel lobbies, banquet rooms and warehouse facilities.

• The 2016 workplace smoking amendments eliminated the ability to have employer-designated smoking break rooms. In the past, smoking break rooms were allowed if sufficient conditions were met. Employer designated smoking break rooms are now outright prohibited.

A few exemptions still remain. Smoking is still allowed in the following places:4

• Twenty percent of the guest room accommodations in a hotel, motel or similar transient lodging establishment. Previously, the number was 65 percent.
• “Private smokers’ lounges,” defined as any enclosed area in or attached to a retail or wholesale tobacco shop dedicated to the use of tobacco products, including cigars and pipes.
• “Retail or wholesale tobacco shops,” defined as any business establishment in which the main purpose is the sale of tobacco products, including cigars, pipe tobacco and smoking accessories
• Cabs of motor trucks or truck tractors if no nonsmoking employees are present.
• Theatrical production sites, if smoking is an integral part of the story in the theatrical production.
• Medical research or treatment sites, if smoking is integral to the research and treatment being conducted.
• Private residences, except for private residences licensed as family day care homes, during the hours of operation as family day care homes and in those areas where children are present.
• Patient smoking areas in long-term health care facilities.

The uniform state law specifically supersedes any local ordinances regulating smoking in the workplace. However, local governments can enact regulations that restrict smoking, even in the areas listed above in which smoking would be permitted legally.

Total Ban on Smoking Is Permissible

You retain the right to prohibit smoking in an enclosed place of employment for any reason. Even if you are totally or partially exempted under the law, you can nonetheless choose to prohibit smoking in the workplace entirely.

Electronic Cigarettes and Vaping

Electronic cigarettes and other nicotine delivery devices, such as vaporizers, are covered under California's state-wide ban on smoking in the workplace.5

The workplace smoking ban extends to “smoking” of any “tobacco product.”

Under California law:

• “Smoking” includes the use of any electronic smoking device that creates an aerosol or vapor or the use of any oral smoking device for the purpose of circumventing the smoking prohibition.
• “Tobacco product” includes any electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including but not limited to an electronic cigarette, cigar, pipe or hookah.

Fines for Violating the Smoking Ban

Violating the statewide workplace smoking ban is punishable by a fine up to $100 for the first violation, $200 for the second violation and $500 for the third and each subsequent violation in one year.6

Employers should review their workplace smoking policies to ensure compliance with California’s strict laws.

1.Lab. Code sec. 6404.5