On October 1, 2007, Public Chapter 410, also known as the “Non-Smoker Protection Act,” will become effective in the state of Tennessee. The new law prohibits smoking in most public places, including restaurants, educational facilities, health care facilities, hotels, shopping malls, sports arenas, restrooms, lobbies, reception areas, taxicabs, elevators and child care facilities.

The law, which was signed by Governor Phil Bredesen on June 11, also specifically bans smoking in “[a]reas available to and customarily used by the general public in businesses and non-profit entities patronized by the public including, but not limited to, banks, laundromats, factories, professional offices, and retail service establishments.” In addition, the ban applies to any "enclosed area under the control of a public or private employer that employees normally frequent during the course of employment, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, and vehicles," without regard to whether the public is actually invited to enter these areas. The law requires that the smoking ban be communicated to all current employees and to prospective employees upon their application for employment. Moreover, the entrance of every place of employment in which smoking is prohibited must display a “No Smoking” sign.

In addition to excluding private residences and non-enclosed public venues from the ban, the law makes an exception for private businesses with three or less employees. For these employers, smoking may be allowed at the discretion of the business owner so long as it is confined to an enclosed room that is not accessible to the general public, and from which smoke cannot infiltrate into an area in which smoking is banned.

Owners, managers or operators of areas subject to the ban who knowingly fail to comply with the new law will receive a written warning for their first violation, a $100 penalty for a second violation, and a $500 penalty for any additional violations in a 12-month period. The law considers each day in which a knowing violation occurs to be a distinct violation. The new law will be enforced by the Tennessee Department of Health or the Tennessee Department of Labor and Workforce Development, depending on which department regularly regulates the area in which the violation occurs. For a copy of the new law, visit http://tennessee.gov/sos/acts/105/pub/pc0410.pdf.

According to Wendy Bartholomew, an attorney in Ogletree Deakins’ Nashville office: “Because the Non-Smoker Protection Act prohibits smoking in areas where employees normally frequent, the new law will have an impact on virtually every employer in Tennessee with at least four employees. These employers will have to do away with ‘smoking rooms,’ and ensure that if employees do smoke during the work day, the smoke does not infiltrate into any non-smoking areas. For this reason, it may be a smart move for employers to designate non-enclosed areas where employees are allowed to smoke without violating the law. The new law’s notice requirements also suggest that it is time to update job applications, bulletin boards, and even employee handbooks. Under the new law, if a manager or employee notices anyone violating the Act, they are required to inform that individual of the Act’s provisions. To help employees comply, employers should update their employee policies and procedures accordingly.”

Note: This article was published in the August 2007 issue of the Tennessee eAuthority.