Clean Indoor Air Act Affects Municipalities

By: Attorney Margaret "Mieke" Driscoll and Anthony T. Bowser

On September 11, 2008, the Clean Indoor Air Act took effect. Under the Act, smoking or permitting others to smoke in a public place that is subject to the ban as well as failing to post a required sign indicating whether smoking is allowed in the facility is punishable by civil and criminal penalties ranging from $250 to $1,000.

Pursuant to the Act, smoking is prohibited in public places, which the act defines as an enclosed area which serves as a workplace, commercial establishment or an area where the public is invited or permitted. This includes restaurants, schools, hospitals, train stations and vehicles used for mass transportation (including, taxicabs, chartered buses and limousines). The Act applies to indoorareas that serve as a place of employment, occupation, business, trade, craft, professional or volunteer activity.

Accordingly, most places of employment will be covered, with the exception of outdoor worksites. Note that the Act covers work vehicles when one or more passenger is in the vehicle, even if all passengers agree to allow smoking. There is no municipal work space or public facility that falls into any exception under the Act, save for open air worksites. The Act, therefore, applies generally to all municipal facilities without exception.

The Act also requires that signs are prominently posted at every entrance to any public place, indicating whether smoking is permitted at the facility (for the most part, smoking will not be permitted). These signs include "Smoking", "No Smoking", or the ubiquitous "No Smoking" symbol.

Under the Act, employers are prohibited from refusing to hire, terminating, or otherwise discriminating against a worker for exercising his or her "right to a smoke-free environment." Interestingly, the Act does not specifically address whether a private right of action exists under this provision, so it remains to be seen whether an employee may obtain damages for a violation.

The Act specifically provides that a good faith effort to prohibit smoking constitutes an affirmative defense to liability. Accordingly, all municipalities should review their policies and document all efforts made to comply with the smoking ban.

CGA Law Firm's attorneys are available to answer specific or more detailed questions about the Act and to help develop policies and strategies for ensuring compliance.