California Legislature—2015–16 Second Extraordinary Session

Senate Bill No. 6

Introduced by Senator Monning

July 16, 2015

An act to amend Section 6404.5 of the Labor Code, relating to employment.

LEGISLATIVE COUNSEL’S DIGEST

SB 6, as introduced, Monning. Smoking in the workplace.

Existing law prohibits smoking of tobacco products inside an enclosed space, as defined, at a place of employment. The violation of the prohibition against smoking in enclosed spaces of places of employment is an infraction punishable by a specified fine.

This bill would expand the prohibition on smoking in a place of employment to include an owner-operated business, as defined.

This bill would also eliminate most of the specified exemptions that permit smoking in certain work environments, such as hotel lobbies, bars and taverns, tobacco shops, banquet rooms, warehouse facilities, and employee break rooms.

By expanding the scope of an infraction, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 6404.5 of the Labor Code is amended to
read:

6404.5.  

(a) The Legislature finds and declares that regulation
of smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this section
to prohibit the smoking of tobacco products in all (100 percent of)
enclosed places of employment in this state, as covered by this
section, thereby eliminating the need of local governments to enact
workplace smoking restrictions within their respective jurisdictions.
It is further the intent of the Legislature to create a uniform
statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this
section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any area not defined as a “place of
employment” pursuant to subdivision begin delete (d) or in which the smoking
of tobacco products is not regulated pursuant to subdivision end delete (e)
shall be subject to local regulation of smoking of tobacco products.

begin insert

(b) For purposes of this section, an “owner-operated business”
shall mean a business having no employees, independent
contractors, or volunteers, in which the owner-operator of the
business is the only worker. “Enclosed space” includes covered
parking lots, lobbies, lounges, waiting areas, elevators, stairwells,
and restrooms that are a structural part of the building and not
specifically defined in subdivision (e).

end insert begin delete

(b)

end delete

begin insert (c) end insert  No employer begin insert or owner-operated business end insert shall knowingly
or intentionally permit, and no person shall engage in, the smoking
of tobacco products begin delete in an enclosed space end delete at a place of begin insert employment
or in an enclosed space. end insert begin delete “Enclosed space” includes lobbies,
lounges, waiting areas, elevators, stairwells, and restrooms that
are a structural part of the building and not specifically defined in
subdivision (d). end delete

begin delete

(c)

end delete

begin insert (d) end insert  For purposes of this section, an employer begin insert or owner-operated
business end insert who permits any nonemployee access to his or her place
of employment begin insert or owner-operated business end insert on a regular basis has
not acted knowingly or intentionally in violation of this section if
he or she has taken the following reasonable steps to prevent
smoking by a nonemployee:

(1) Posted clear and prominent signs, as follows:

(A) Where smoking is prohibited throughout the building or
structure, a sign stating “No smoking” shall be posted at each
entrance to the building or structure.

(B) Where smoking is permitted in designated areas of the
building or structure, a sign stating “Smoking is prohibited except
in designated areas” shall be posted at each entrance to the building
or structure.

(2) Has requested, when appropriate, that a nonemployee who
is smoking refrain from smoking in the enclosed begin delete workplace. end delete
begin insert workplace or owner-operated business. end insert

For purposes of this subdivision, “reasonable steps” does not
include (A) the physical ejection of a nonemployee from the place
of employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances
involving a risk of physical harm to the employer or any begin delete employee. end delete
begin insert employee or owner-operator. end insert

begin delete

(d)

end delete

begin insert (e) end insert  For purposes of this section, “place of employment” does
not include any of the following:

(1)  begin delete Sixty-five end delete begin insert Twenty end insert percent of the guestroom accommodations
in a hotel, motel, or similar transient lodging establishment.

begin delete

(2) Areas of the lobby in a hotel, motel, or other similar transient
lodging establishment designated for smoking by the establishment.
An establishment may permit smoking in a designated lobby area
that does not exceed 25 percent of the total floor area of the lobby
or, if the total area of the lobby is 2,000 square feet or less, that
does not exceed 50 percent of the total floor area of the lobby. For
purposes of this paragraph, “lobby” means the common public
area of an establishment in which registration and other similar or
related transactions, or both, are conducted and in which the
establishment’s guests and members of the public typically
congregate.

(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions
are taking place, including setup, service, and cleanup activities,
or when the room is being used for exhibit purposes. At times
when smoking is not permitted in a meeting or banquet room
pursuant to this paragraph, the establishment may permit smoking
in corridors and prefunction areas adjacent to and serving the
meeting or banquet room if no employee is stationed in that
corridor or area on other than a passing basis.

(4) Retail or wholesale tobacco shops and private smokers’
lounges. For purposes of this paragraph:

(A) “Private smokers’ lounge” means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.

(B) “Retail or wholesale tobacco shop” means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.

end delete begin delete

(5)

end delete

begin insert (2) end insert  Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are present.

begin delete

(6) Warehouse facilities. For purposes of this paragraph,
“warehouse facility” means a warehouse facility with more than
100,000 square feet of total floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.

(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, “gaming club” means any
gaming club, as defined in Section 19802 of the Business and
Professions Code, or bingo facility, as defined in Section 326.5 of
the Penal Code, that restricts access to minors under 18 years of
age.

(8) Bars and taverns, in which smoking is permitted by
subdivision (f). For purposes of this paragraph, “bar” or “tavern”
means a facility primarily devoted to the serving of alcoholic
beverages for consumption by guests on the premises, in which
the serving of food is incidental. “Bar or tavern” includes those
facilities located within a hotel, motel, or other similar transient
occupancy establishment. However, when located within a building
in conjunction with another use, including a restaurant, “bar” or
“tavern” includes only those areas used primarily for the sale and
service of alcoholic beverages. “Bar” or “tavern” does not include
the dining areas of a restaurant, regardless of whether alcoholic
beverages are served therein.

end delete begin delete

(9)

end delete

begin insert (3) end insert  Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.

begin delete

(10)

end delete

begin insert (4) end insert  Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.

begin delete

(11)

end delete

begin insert (5) end insert  Private residences, except for private residences licensed as
family day care homes, where smoking is prohibited pursuant to
Section 1596.795 of the Health and Safety Code.

begin delete

(12)

end delete

begin insert (6) end insert  Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code.

begin delete

(13) Breakrooms designated by employers for smoking, provided
that all of the following conditions are met:

(A) Air from the smoking room shall be exhausted directly to
the outside by an exhaust fan. Air from the smoking room shall
not be recirculated to other parts of the building.

(B) The employer shall comply with any ventilation standard
or other standard utilizing appropriate technology, including, but
not limited to, mechanical, electronic, and biotechnical systems,
adopted by the Occupational Safety and Health Standards Board
or the federal Environmental Protection Agency. If both adopt
inconsistent standards, the ventilation standards of the Occupational
Safety and Health Standards Board shall be no less stringent than
the standards adopted by the federal Environmental Protection
Agency.

(C) The smoking room shall be located in a nonwork area where
no one, as part of his or her work responsibilities, is required to
enter. For purposes of this subparagraph, “work responsibilities”
does not include any custodial or maintenance work carried out in
the breakroom when it is unoccupied.

(D) There are sufficient nonsmoking breakrooms to
accommodate nonsmokers.

(14) Employers with a total of five or fewer employees, either
full time or part time, may permit smoking where all of the
following conditions are met:

(A) The smoking area is not accessible to minors.

(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion
to obtain consent or who has required an employee to work in the
smoking area shall be subject to the penalty provisions of Section
6427.

(C) Air from the smoking area shall be exhausted directly to
the outside by an exhaust fan. Air from the smoking area shall not
be recirculated to other parts of the building.

(D) The employer shall comply with any ventilation standard
or other standard utilizing appropriate technology, including, but
not limited to, mechanical, electronic, and biotechnical systems,
adopted by the Occupational Safety and Health Standards Board
or the federal Environmental Protection Agency. If both adopt
inconsistent standards, the ventilation standards of the Occupational
Safety and Health Standards Board shall be no less stringent than
the standards adopted by the federal Environmental Protection
Agency.

This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become
inoperative.

(e) Paragraphs (13) and (14) of subdivision (d) shall not be
construed to require employers to provide reasonable
accommodation to smokers, or to provide breakrooms for smokers
or nonsmokers.

(f) (1) Except as otherwise provided in this subdivision,
smoking may be permitted in gaming clubs, as defined in paragraph
(7) of subdivision (d), and in bars and taverns, as defined in
paragraph (8) of subdivision (d), until the earlier of the following:

(A) January 1, 1998.

(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible
employee exposure level to environmental tobacco smoke to a
level that will prevent anything other than insignificantly harmful
effects to exposed employees or (ii) by the federal Environmental
Protection Agency establishing a standard for reduction of
permissible exposure to environmental tobacco smoke to an
exposure level that will prevent anything other than insignificantly
harmful effects to exposed persons.

(2) If a regulation specified in subparagraph (B) of paragraph
(1) is adopted on or before January 1, 1998, smoking may thereafter
be permitted in gaming clubs and in bars and taverns, subject to
full compliance with, or conformity to, the standard in the
regulation within two years following the date of adoption of the
regulation. An employer failing to achieve compliance with, or
conformity to, the regulation within this two-year period shall
prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety
and Health Standards Board and the federal Environmental
Protection Agency both adopt regulations specified in subparagraph
(B) of paragraph (1) that are inconsistent, the regulations of the
Occupational Safety and Health Standards Board shall be no less
stringent than the regulations of the federal Environmental
Protection Agency.

(3) If a regulation specified in subparagraph (B) of paragraph
(1) is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January
1, 1998, smoking may thereafter be permitted in gaming clubs and
in bars and taverns, subject to full compliance with, or conformity
to, the standard in the regulation within two years following the
date of adoption of the regulation. An employer failing to achieve
compliance with, or conformity to, the regulation within this
two-year period shall prohibit smoking in the gaming club, bar,
or tavern until compliance or conformity is achieved. If the
Occupational Safety and Health Standards Board and the federal
Environmental Protection Agency both adopt regulations specified
in subparagraph (B) of paragraph (1) that are inconsistent, the
regulations of the Occupational Safety and Health Standards Board
shall be no less stringent than the regulations of the federal
Environmental Protection Agency.

(4) From January 1, 1997, to December 31, 1997, inclusive,
smoking may be permitted in gaming clubs, as defined in paragraph
(7) of subdivision (d), and in bars and taverns, as defined in
paragraph (8) of subdivision (d), subject to both of the following
conditions:

(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.

(B) If feasible, no employee shall be required, in the
performance of ordinary work responsibilities, to enter any area
in which smoking is permitted.

end delete begin delete

(g)

end delete

begin insert (f) end insert  The smoking prohibition set forth in this section shall
constitute a uniform statewide standard for regulating the smoking
of tobacco products in enclosed places of employment begin insert and
owner- end insert begin insert operated businesses end insert and shall supersede and render
unnecessary the local enactment or enforcement of local ordinances
regulating the smoking of tobacco products in enclosed places of
begin delete employment. end delete begin insert employment and owner- end insert begin insert operated businesses. end insert Insofar
as the smoking prohibition set forth in this section is applicable to
all (100-percent) places of employment begin insert and owner- end insert begin insert operated
businesses end insert within this state and, therefore, provides the maximum
degree of coverage, the practical effect of this section is to
eliminate the need of local governments to enact enclosed
workplace smoking restrictions within their respective jurisdictions.

begin delete

(h)

end delete

begin insert (g) end insert  Nothing in this section shall prohibit an employer begin insert or
owner- end insert begin insert operated business end insert from prohibiting smoking in an enclosed
place of employment begin insert or owner-operated business end insert for any reason.

begin delete

(i)

end delete

begin insert (h) end insert  The enactment of local regulation of smoking of tobacco
products in enclosed places of employment begin insert or owner-operated
businesses end insert by local governments shall be suspended only for as
long as, and to the extent that, the (100-percent) smoking
prohibition provided for in this section remains in effect. In the
event this section is repealed or modified by subsequent legislative
or judicial action so that the (100-percent) smoking prohibition is
no longer applicable to all enclosed places of employment begin insert and
owner-operated businesses end insert in California, local governments shall
have the full right and authority to enforce previously enacted, and
to enact and enforce new, restrictions on the smoking of tobacco
products in enclosed places of employment begin insert and owner-operated
businesses end insert within their jurisdictions, including a complete
prohibition of smoking. Notwithstanding any other provision of
this section, any area not defined as a “place of employment” or
in which smoking is not regulated pursuant to subdivision begin delete (d) or end delete
(e), shall be subject to local regulation of smoking of tobacco
products.

begin delete

(j)

end delete

begin insert (i) end insert  Any violation of the prohibition set forth in subdivision begin delete (b) end delete
begin insert (c) end insert is an infraction, punishable by a fine not to exceed one hundred
dollars ($100) for a first violation, two hundred dollars ($200) for
a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies,
including, but not limited to, local health departments, as
determined by the local governing body.

begin delete

(k)

end delete

begin insert (j) end insert  Notwithstanding Section 6309, the division begin delete shall not be end delete begin insert is
not end insert required to respond to any complaint regarding the smoking
of tobacco products in an enclosed space at a place of employment,
unless the employer has been found guilty pursuant to subdivision
begin delete (j) end delete begin insert (i) end insert of a third violation of subdivision begin delete (b) end delete begin insert (c) end insert within the previous
year.

begin delete

(l)

end delete

begin insert (k) end insert  If any provision of this begin delete act end delete begin insert section end insert or the application thereof
to any person or circumstances is held invalid, that invalidity shall
not affect other provisions or applications of the begin delete act end delete begin insert section end insert that
can be given effect without the invalid provision or application,
and to this end the provisions of this begin delete act end delete begin insert section end insert are severable.

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.