Indiana Governor Mitch Daniels signed state-wide anti-smoking legislation into law in March 2012 that affects nearly all Indiana employers and public establishments.  The new law takes effect on July 1, 2012. 

Locations Covered

The law prohibits smoking within the following locations:

1. In a “place of employment,” which is defined as “an enclosed area of a structure that is a place of employment.”  The law provides that private vehicles are not included within the term “place of employment.”
2. In a “public place,” which is defined as “an enclosed area of a structure in which the public is invited or permitted.” 
3. Within eight feet of a public entrance to either a place of employment or a public place.  
4. In a vehicle owned, leased, or operated by the state if the vehicle is being used for a governmental function.
5. In school buses that are being used to transport children to school or school-related functions.

Exempted Establishments

The law exempts limited categories of establishments and premises from the new law.  These exempted establishments and premises include: bars, riverboats, casinos, retail tobacco stores, and certain fraternal clubs.

If a place of employment or public place is exempted from the new law and it allows smoking in its establishment or on its premises, it must post conspicuous signs in the establishment or on the premises that read, “WARNING: Smoking Is Allowed In This Establishment” or other similar language.

Legal Requirements

The new law requires employers to inform each of the employer’s employees and prospective employees about the smoking prohibition.  An employer may want to consider placing the required notice on its bulletin boards containing other employment-related notices.  An employer may also want to consider updating its employee handbook to include the required notice.  To comply with the law’s requirement that notice also be given to prospective employees, an employer may also want to consider adding such a notice to its employment application. 

The law also requires owners, operators, managers, or officials in charge of a public place or a place of employment to:

1. Remove all ashtrays or other smoking paraphernalia from any area where smoking is prohibited by the law; and
2. Post conspicuous signs at each public entrance to a non-smoking area that read “State Law Prohibits Smoking Within 8 Feet of the Entrance” or that contain other similar language. 

The law requires owners, operators, managers, or officials in charge of a public place to:

1. Post conspicuous signs within the public place that read “Smoking is Prohibited By State Law” or other similar language;
2. Request that any individual who is smoking in violation of the law refrain from smoking; and
3. Remove from the public place any individual who continues to smoke after receiving a request to refrain from smoking. 

If removal of an individual from an establishment is required, lawful means should be used—including, if necessary, contacting the police for assistance in the removal. 

In addition to the requirements listed above, an owner or operator of a restaurant is required to place a conspicuous sign at each entrance to the establishment informing the public that smoking is prohibited in the restaurant.

Prohibition Against Discrimination or Retaliation

The law prohibits an owner, manager, or employer from discharging, refusing to hire, or retaliating in any way against an individual who reports a violation of this law or who exercises any right or complies with any obligation required by the law.  The new law, however, does not explain what recourse the employee has if the employer violates the prohibition against discrimination or retaliation.

Enforcement

The law charges Indiana’s Alcohol & Tobacco Commission with primary enforcement of this law, but it also allows the Indiana State Department of Health, local health departments, a law enforcement officer, and other state and local agencies to enforce the law.  The law allows any of these government entities to inspect premises that are subject to the law to ensure compliance.  An employer’s or owner’s noncompliance with the requirements of the new law constitutes a Class B infraction, which carries a fine of up to $1,000.  Noncompliance with the law’s requirements more than three times constitutes a Class A infraction, which carries a fine of up to $10,000.   

Laws Enacted by Local Governments

The new law specifically clarifies that local governments are permitted to enact laws that are more restrictive than the state’s law. The new law also does not supersede any local law already in effect that is more restrictive than the state’s law.  This means that if an employer is located in a city, county, or town with laws that are stricter than those contained in this new law, the employer must comply with the local government’s more restrictive laws.

For additional information, please contact a member of Taft’s Labor and Employment Group.