• Failure to Prohibit Smoking Could Be a Smoking Gun for Employers
  • July 4, 2012 | Author: Jennifer Bickley Hull
  • Law Firm: Faegre Baker Daniels - South Bend Office
  • Recall from our March 20, 2012, update, smoking will be prohibited in most Indiana workplaces, effective July 1, 2012. Not only will smoking be prohibited within "a place of employment," but any smoking permitted outdoors must done at least eight (8) feet away from any public entrance to such a facility. By July 1, 2012, employers covered under this law should:

    • Post a sign at any public entrance which says, "State Law Prohibits Smoking Within 8 Feet of this Entrance" or other similar language;
    • Remove indoor ashtrays and similar smoking paraphernalia; and
    • Clearly communicate with employees that smoking is prohibited indoors as well as where, specifically, it is permitted outdoors.

    Penalties for failure to abide by the provisions of the law include injunctions against employers and civil infractions with fines up to $10,000 for repeat offenders.

    Keep in mind that a local ordinance may be more restrictive than the state ban. In such a case, the local ordinance supersedes the state law, and the ordinance should be followed. Businesses may want to visit the Department of Health's website, Breathe Easy Indiana, to obtain a free toolkit containing no smoking posters, brochures, coasters, and window and door decals.

    Employers which may be eligible for exclusion under this law include bars, taverns, casinos, off-track betting facilities, cigar bars, hookah bars, tobacco retail shops, private clubs and some home-based businesses which employ family members.

    Finally, the American Legion Post 243 recently filed a lawsuit in the Northern District of Indiana (Case No. 1:12-cv-207-WCL-RBC) against the Indiana Alcohol and Tobacco Commission, one of the entities responsible for enforcing the smoking ban. The lawsuit requests preliminary and permanent injunctions enjoining the Commission from enforcing the law. Stay tuned for updates on this litigation.