New No Smoking Law in Illinois Exposes Employers to Liability

As of January 1, 2008, Illinois employers could face fines if they fail to prevent their employees from smoking in the workplace.  Specifically, the “Smoke Free Illinois Act” requires, among other things, employers to prohibit any person from smoking in any place of employment or within 15 feet of any entrance to a place of employment.  Further, the Act requires employers to clearly and conspicuously post “No Smoking” signs or the international “No Smoking” symbols in the workplace, post signs at every entrance to the workplace stating that smoking is prohibited, and remove all ashtrays from the workplace.  The Act prohibits retaliation against employees who report a violation of the Act or participate in an investigation of a violation of the Act.  While the Act does not require employers to provide an outdoor smoking shelter for employees, it does require existing shelters and ashtrays to be moved in accordance with the 15 foot rule.  There are several exemptions outlined in the Act.

As defined for purposes of the Act, an “employer” is any person, business, partnership, association, or corporation, including a municipal corporation, trust, or non-profit entity that employs one or more individual persons.  Employers may be fined each day they violate the Act for a minimum of $250 for the first violation, a minimum of $500 for the second violation within one year after the first violation, and a minimum of $2,500 for each additional violation within one year after the first violation.  Employees are also subject to fines if they violate the Act by smoking in the workplace, and the Act does not prohibit an employer from reporting an employee who is in violation of the Act.

The Act defines “place of employment” as any area where employees are required to enter, leave, or pass through while performing their work duties, any area where employees have their offices or work areas, and any “common areas” such as restrooms, conference rooms, classrooms, break rooms, and cafeterias.  In addition, the phrase “within 15 feet of any entrance” includes entrance and exit doors, windows that open, and ventilation intakes.

Places of employment exempt from the Act include: (1) private residences and home-based businesses unless the facility is used to provide licensed child care, foster care, adult care, or other similar social service; (2) retail tobacco stores meeting certain requirements; (3) private and semi-private rooms in nursing homes and long-term care facilities meeting certain requirements; and (4) hotel and motel sleeping rooms meeting certain requirements.

The Act can be enforced and fines may be levied by the Illinois Department of Public Health, state-certified local public health departments, and local law enforcement agencies.  The Department of Public Health has created a website and toll-free hotline for reporting violations of the Act and will soon implement regulations interpreting the Act.

Additional Information

Should you have any questions about this law and its ramifications, please contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at clientservices@ogletreedeakins.com. 

Note: This article was published in the January 14, 2008 issue of the Illinois eAuthority.