United States: The New Boston Smoking Ban

By Wilfred J. Benoit Jr., P.C. and Robert L. Brennan Jr.

What Employers and Landlords Need to Know About the City’s Workplace Smoking Restriction

Under the recently adopted Boston Public Health Commission "Clean Air Works Workplace Smoking Restrictions" Regulation, most workplaces and commercial buildings in the City of Boston are required to be "smoke free" working environments beginning May 5, 2003. With certain exceptions, most notably workplaces in compliance with an earlier smoking ordinance (discussed below), the Regulation imposes significant requirements on employers to provide and maintain a smoke free workplace. In addition, certain regulations governing common areas may require commercial property owners and managers to post signs enforcing the City-wide smoking ban in their buildings. This alert discusses the new Regulation’s requirements, enforcement provisions and exemptions available to some businesses.

The new Regulation, which prohibits smoking tobacco products in Boston workplaces, imposes two primary requirements on employers: adoption and enforcement of a written "no smoking" policy; and posting of "no smoking" signs at workplace entrances and common areas.

No Smoking Policy. Under the terms of the Regulation, "It shall be the responsibility of the employer to provide a smoke free environment for all employees working in an enclosed workspace." Additionally, "Each employer shall adopt, distribute and implement, a written policy prohibiting smoking in the workplace . . ." Existing businesses in the City of Boston have until June 4, 2003 to adopt and distribute the no smoking policy, and a copy of the policy must also be "conspicuously posted in all facilities or areas of the workplace." New businesses will have four weeks from the commencement of operations to adopt and distribute a no smoking policy.

Guidelines published by the BPHC for implementation and enforcement of the Regulation specify that the no smoking policy required of all employers "shall contain a statement advising all employees of their right to work in a smoke free environment, information on how to file a complaint with the Boston Public Health Commission and information on how to obtain help quitting smoking."

The BPHC has formulated a Model Policy that employers are encouraged to adopt. The Model Policy provides specific language meeting the Regulation requirements, and also suggests provisions for discipline of employees who violate the no smoking policy and language encouraging employees to quit smoking.

BPHC Guidelines state that employers that intend to adopt a policy differing in text from the Model Policy must submit their proposed policy along with a Submission Form and a check for $25 to the BPHC Tobacco Control Program at least 15 days prior to implementing the policy. Copies of the Regulation, implementation and enforcement Guidelines, Model Policy and Submission Form are available online at http://www.bphc.org.

No Smoking Signs. In addition to adoption of a no smoking policy, the Regulation requires employers to "post in a clear and conspicuous manner in the workplace, signs stating that smoking is prohibited." The Guidelines specify that signs must be "posted and visible at the entrances to all workplaces, restrooms and breakrooms." Additionally, signs must contain the words "IT IS ILLEGAL TO SMOKE IN THIS ESTABLISHMENT. TO REPORT A VIOLATION CALL THE BOSTON PUBLIC HEALTH COMMISSION AT 617-534-4718." To assist businesses in meeting the sign requirements, approved signs and templates are available from the BPHC Tobacco Control Program at 774 Albany Street, Second Floor in Boston. Individual sign designs and samples may also be submitted to the BPHC Tobacco Control Program for approval.

Building owners and landlords may also be required to comply with the signage requirements. Although the Regulation imposes the obligation to post no-smoking signs only on "employers," BPHC implementation Guidelines also require the posting of no smoking signs in public areas such as lobbies, hallways and elevators. In office buildings such areas will likely be common areas that are the responsibility of the landlord rather than any single tenant to maintain. However, under most leases the cost of providing required signs in public areas may be apportioned among tenants.

The Regulation obligates employers to ensure compliance with the workplace smoking ban, and citations for violations may be issued against offending employers by the BPHC, Boston Inspectional Services and the Boston Police and Fire Departments. Violations will carry fines against employers of up to $100 for a first violation, $500 for a second violation within a 24-month period and $1000 for the third and each successive violation within a 24-month period. Under the Regulation, each successive calendar day that "an employer, person, business or entity operates in violation of any provision of [the Regulation] shall be deemed a separate violation" and subject to fine accordingly. All citations and fines are civil in nature and may be appealed to the BPHC. In enforcing the Regulation, the BPHC Tobacco Control Program has announced that in addition to investigating complaints of violations it will also conduct unannounced inspections of workplaces. As part of such inspections, evidence of a violation for which a citation may be issued include the following: ashtrays or other cigar/cigarette receptacles in the workplace; cigarette butts in workplace areas; and the odor of tobacco smoke.

The Regulation also prohibits any retaliatory action against any employee, applicant, customer or other person for complaints seeking enforcement of the workplace smoking ban or the exercise of any other rights under the Regulation.

The Regulation contains several exemptions from compliance with its terms that may be available to Boston businesses. These include exemptions for private residences; hotel, motel, inn, bed and breakfast and lodging rooms that are designated as "smoking rooms;" retail tobacco stores; licensed "smoking bars" (defined as an establishment generating more than 60% of its revenue from the service of tobacco products) and "Business Office Space" (defined as employers for whom more than 90% of revenue is derived from conducing or providing "clerical, professional or business services").

Business Office Space Exception. For many Boston office buildings and companies, the Business Office Space exemption may be available. This exemption extends to clerical, professional or business service workplaces (including business portions of manufacturing and medical treatment facilities, but specifically excluding banks and financial services institutions) that are covered by and in compliance with Boston Workplace Smoking Pollution Control Ordinance 16-35.

Ordinance 16-35 was adopted in 1993 and requires clerical, professional and business employers to "implement, maintain, and conspicuously post, for all employees to see, a written smoking policy . . ." Unlike the new BPHC Regulation, Ordinance 16-35 does not require workplaces to be smoke free. Instead, the policy mandated under Ordinance 16-35 requires employers to respond to any objection by an employee about smoke in the workplace by reaching "a reasonable accommodation, insofar as possible, between the preferences of all the nonsmoking and smoking employees" by using "existing means of ventilation or separation or partition of the workspace." Employers are not required to make any capital expenditures or structural changes to accommodate the preferences of nonsmoking employees. However, if the employer elects to prohibit smoking in any portion of the workspace, those areas must be clearly marked as non-smoking.

BPHC Guidelines state that to qualify for the Business Office Space exception to the Regulation, existing businesses must submit a letter to the BPHC by October 5, 2003 (businesses commenced after August 5, 2003 must submit a letter within 90 days) stating that the business is exempt because of its compliance with Ordinance 16-35. The letter must also include a certified copy of a city or state license indicating that their primary business is clerical, professional, businesses services, medical treatment or manufacturing; and documentation that the business has continually complied with the requirements of Ordinance 16-35 since 1993 or, if later, since three months after the business began. Documents establishing the business’s history of compliance with Ordinance 16-35 may include dated copies of workplace smoking policies or a sworn statement of the employer as to its compliance.

Waivers. Employers may also obtain one waiver for up to 90 days from compliance with the new Regulation. Waiver requests must be made in writing to the BPHC Executive Director and accompanied by a $100 check or money order filing fee.

All employers and commercial property owners/managers within the City of Boston should acquaint themselves with the requirements of the new Boston Public Health Commission "Clean Air Works Workplace Smoking Restrictions" Regulation, its implementation and enforcement Guidelines, and the BPHC Model Policy for a smoke free workplace.

Unless exempt from the Regulation or in receipt of a 90-day waiver, employers are required to comply with the Regulation by June 6, 2003.