Client Alert for Tennessee Employers — "Non-Smoker Protection Act"

November 21, 2007

Perhaps you have noticed an increasing number of restaurants publicizing that they are "smoke-free." This is due in part to the implementation of the "Non-Smoker Protection Act", passed by the Tennessee legislature in June and effective October 1, 2007.

The Act prohibits smoking in all enclosed public places within the State of Tennessee, and effectively eliminates indoor smoking in nearly all workplaces. The Act defines a "public place" as an enclosed area to which the public is invited including, but not limited to, banks, restaurants, retail stores, sports arenas, and places of employment. "Place of employment" means an enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, employee cafeterias, hallways, and vehicles.

Certain areas are exempt from the Act:

? Non-enclosed areas such as open air patios, porches, or decks. Employees can continue to smoke outdoors.

? Age-restricted venues. A legal establishment that requires persons to be 21 years of age and to provide identification which verifies their age.

? Private clubs.

? Hotel and motel rooms designated as smoking rooms.

? Private businesses with three or fewer employees, provided the smoking in an enclosed area is not accessible to the general public.

? Licensed nursing homes and long-term care facilities. The exemption applies only to residents of such facilities, and smoke from enclosed areas may not infiltrate into areas where smoking is prohibited. Resident smoking practices are governed by the policies and procedures established by the facility.

Notice
This prohibition on smoking must be communicated to all existing employees and to all prospective employees upon their application for employment.

Signage
"No Smoking" signs must be conspicuously posted at every entrance to every public place and place of employment where smoking is prohibited by the Act.

Penalties
A person who knowingly smokes in a prohibited area is subject to a civil penalty of $50.

An employer who knowingly fails to comply with any provision of the Act is subject to the following:

? First violation in any twelve-month period ? a written warning from the Tennessee Department of Health or the Tennessee Department of Labor and Workforce Development.

? Second violation in any twelve-month period ? a civil penalty of $100.

? Third or subsequent violations in any twelve-month period ? a civil penalty of $500.

Policy Implications
As noted above, this regulation requires that all current employees and all prospective employees be informed of the new restrictions on smoking in the workplace. This may require revisions to current company policies with regard to smoking as well as revisions to your employee handbook.