Prepared October 1997 by the Cal/OSHA Consultation Service

This fact sheet summarizes the provisions of Labor Code Section 6404.5 prohibiting smoking in places of employment. This summary information should not be relied upon as legal advice. A copy of Section 6404.5 is attached with this Fact Sheet.

Effective Date January 1, 1995

General Provision "No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment."

Enforcement This law will be enforced by local law enforcement agencies, including but not limited to, local health departments.

For workplaces covered by AB-13, Cal/OSHA is required to respond to complaints regarding smoking in places of employment only after the employer has been found guilty of three violations of this law within the previous year. Complaints received by Cal/OSHA regarding smoking in workplaces not covered by AB-13 smoking restrictions (see Workplace Exceptions below) will result in a letter directing the employer to investigate and correct the problem.

Workplace Exceptions See page 3 of this fact sheet for the complete list from AB-13.

In addition to workplaces specifically listed on page 3 of this fact sheet, any employer with five or fewer employees (full or part-time) may permit smoking where:

  1. The smoking area is not accessible to minors.
  2. All employees who enter the smoking area consent to permit smoking, and no one is required as part of their job to work in an area where smoking is permitted.
  3. Air from the smoking area is exhausted directly outside.
Maximum Fines from Local Agencies
1st violation - $100
2nd violation - $200
3rd and subsequent violations - $500

Maximum Fines from Cal/OSHA After a 3rd violation within the previous year, Cal/OSHA is required to investigate complaints and may cite employers with fines up to $7,000 for violations classified as general or serious, and fines up to $70,000 for violations classified as willful serious. Violations can be classified as serious depending upon specific circumstances. For example, where the exposure to second hand smoke causes a serious asthma attack which could have been prevented the violation may be cited as serious.

Breakrooms Breakrooms are exempted from the smoking ban provided air from the room is exhausted directly to the outside by an exhaust fan and the rooms are in a nonwork area where employees are not required to be present as part of their work responsibilities other than custodial or maintenance work when the room is unoccupied.

Where they are provided for smokers, there must also be a sufficient number of breakrooms to accommodate nonsmokers. However, the law does not require employers to provide smoking areas or breakrooms for smokers, or to provide breakrooms for nonsmokers where they are not provided for smokers.

Adequate Compliance Measures (specified in AB-13)

  1. Posting of clear and prominent signs stating "No Smoking" at entrances to buildings where smoking is prohibited throughout;
  2. In buildings where smoking is permitted in designated areas, posting of a sign at the building entrance stating "Smoking is prohibited except in designated areas;" and
  3. Requesting that nonemployees smoking in prohibited areas refrain from doing so unless such a request would involve a risk of physical harm to the employer or any employee.

Note: Employers are not required to physically eject smoking nonemployees from workplaces.

Supersedes Local Laws This law supersedes and pre-empts local laws, ordinances, and regulations with respect to smoking in enclosed places of employment. However, the law does not supersede local authority to regulate work environments exempted from coverage in the law and to require provision of breakrooms for smokers and nonsmokers. This law also does not prevent employers from enacting more restrictive smoking prohibitions in their workplaces.

Workplaces, or portions thereof, not covered by Labor Code Section 6404.5 (AB-13) smoking restrictions:1

1An exemption for gaming clubs, bars, and taverns expires January 1, 1998.

LABOR CODE SECTION 6404.5 Smoking in Places of Employment Prohibited - Exceptions
(Source: www.leginfo.ca.gov 10/10/97)

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 (d) or in which the smoking of tobacco products is not regulated pursuant to subdivision (e) shall be subject to local regulation of smoking of tobacco products.

(b)No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.

(c)For purposes of this section, an employer who permits any nonemployee access to his or her place of employment on a regular basis has not acted knowingly or intentionally if he or she has taken the following reasonable steps to prevent smoking by a nonemployee:

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 employee.

(d)For purposes of this section, "place of employment" does not include any of the following: