Prohibition on Smoking

Prohibition on Smoking in an Enclosed Workplace

Code of Maryland Regulations (COMAR) 09.12.23

Compliance Guidelines

Table of Contents

Section Page

General Information...... 1

COMAR 09.12.23...... 2

Highlights of the Five Easy Steps to Compliance...... 5

Five Easy Steps to Compliance...... 6

Questions and Answers...... 8

Appendix A – Sample No Smoking Sign

Appendix B - Resources

General Information

This publication is designed to assist employers in complying with the requirements of the Prohibition On Smoking In An Enclosed Workplace Regulation (COMAR 09.12.23). It is important to read the full text of the regulation to gain a basic understanding of the entire regulation.

House Bill 1368, passed by the 1995 General Assembly and signed by the

Governor sets out specific requirements for the “hospitality” industry.

This publication does not address these changes affecting the “hospitality”

industry.

The regulation requires employers to ensure that in an enclosed workplace there is no smoking. Employers must also post at each entrance a sign that smoking is prohibited. If an employer so desires, the regulation permits them to establish a designated smoking area. The regulation provides the specific criteria necessary to design an enclosed designated smoking area.

The regulation permits an exemption from the regulation for:

1. A tobacconist establishment that engages primarily in the sale of tobacco and tobacco related accessories.

1. A vehicle, when used in the course of employment and occupied by only one individual.

1. Smoking that is necessary to the conduct of scientific research into the health effects of tobacco smoke conducted at an analytical or educational laboratory.

The “Five Easy Steps to Compliance” outlines requirements for compliance with the regulation.

TITLE 09 DEPARTMENT OF LABOR, LICENSING, AND REGULATION

Subtitle 12 DIVISION OF LABOR AND INDUSTRY

Chapter 23 Prohibition on Smoking in an Enclosed Workplace

Authority: Labor and Employment Article, §§ 2-106(b)(4) and 5-312,

Annotated Code of Maryland

.01Definitions.

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

(1)Enclosed Workplace.

(a) "Enclosed workplace” means an indoor place of employment.

(b) "Enclosed workplace" includes, but is not limited to:

(i) An indoor work area;

(ii) A vehicle when an employee uses it in the course of employment and it is occupied by more than one employee;

(iii) An employee lounge or restroom;

(iv) A conference and meeting room;

(v) A classroom;

(vi) A cafeteria operated by an employer for use by its employees;

(vii) A hallway;

(viii) A restaurant;

(ix) A bar or tavern;

(x) A sleeping room in a hotel or motel; and

(xi) An assembly, conference, convention, or meeting establishment or enclosed portion of the establishment.

1

(2)"Smoking" means to use or carry any lighted:

(a) Cigar;

(b) Cigarette;

(c) Pipe; or

(d) Other tobacco product of any kind.

.02Exclusions.

This regulation does not apply to:

A. A tobacconist establishment that engages primarily in the sale of tobacco and tobacco-related accessories;

B. A vehicle, when used in the course of employment and occupied by only one individual; and

C. Smoking that is necessary to the conduct of scientific research into the health effects of tobacco smoke conducted at an analytical or educational laboratory.

.03Employer Requirements.

Except as provided in Regulation .04 of this chapter, an employer shall:

A. Ensure that in an enclosed workplace there is no smoking; and

B. Post at each entrance to a place of employment having an enclosed workplace a sign stating that smoking is not permitted.

.04Designated Smoking Area.

A. An employer may permit smoking in a designated smoking area which meets the criteria in §B of this regulation.

B. Criteria. The designated smoking area:

(1)Shall have:

(a) Solid walls and ceiling and a closable door,

(b) Walls tightly joining floor and ceiling,

(c) Openings to adjacent enclosed workplaces limited to make-up air inlets, and

(d) A ventilation system that exhausts directly to the outdoors without recirculation to nonsmoking areas;

(2)May not be a location where an employee, other than a custodial or maintenance employee, is required to work;

(3)Shall be under negative pressure sufficient to prevent smoke migration to enclosed workplaces.

C. Cleaning. The employer shall ensure that cleaning and maintenance work in a designated smoking area is conducted while no one is smoking in the area.

D. Measurements. The employer shall periodically, but at least quarterly, inspect the ventilation of the smoking area to ensure that appropriate negative pressure is being maintained.

.05Interpretation.

This chapter may not be construed to:

A. Require an employer to provide a designated smoking area as permitted by Regulation .04 of this chapter; or

B. Prevent an employer from prohibiting smoking in areas not covered by this chapter.

Administrative History

Effective date: August 1, 1994 (21:15 Md. R 1304)

Annotation: On July 22, 1994, judicial action stayed the enforcement of COMAR 09.12.23. H & G Restaurant, Inc., et al. v. William A. Fogle, et al., Case No. CG 2460, Circuit Court for Talbot County. On February 24, 1995, the Court of Appeals vacated the stay. William A. Fogle, et al. v. H & G Restaurant, Inc., et al., Case No. 69, September Term, 1994. At the time this supplement went to press, subject to additional legislative or judicial action, these regulations are scheduled to take effect on March 28, 1995.

Highlights of the Five Easy Steps to Compliance

1. Delegate responsibility for implementation of the prohibition to a competent person who has reviewed and is knowledgeable about the regulation and the requirements.

1. Decide whether to establish a “Designated Smoking Area” in an enclosed workplace.

1. Ensure that in an enclosed workplace there is no smoking, except in a designated smoking area that meets the design requirements of the regulation.

1. Post at each entrance to the enclosed workplace a sign stating that smoking is prohibited.

1. Enforce the prohibition on smoking in the enclosed workplace.

Five Easy Steps To Compliance

1.Delegate responsibility for implementation of the prohibition to a competent person who has reviewed and is knowledgeable about the regulation and the requirements.

The success of ensuring compliance with any standard or regulation depends, in part, on the competency of the individual assigned the responsibility for implementation. This individual must have necessary knowledge, skill, and authority to perform the required task.

The person selected must have at least the following:

• Knowledge of the employer’s operation and physical layout.

• The ability to determine if the regulation is applicable to the workplace.

• The ability to effectively communicate and enforce the Prohibition on Smoking in an Enclosed Workplace.

• A basic understanding of ventilation practices if a “Designated Smoking Area” is used.

The person selected may be, but is not limited to, the owner, a safety representative, or a supervisor.

2.Decide whether to establish a “Designated Smoking Area” in an enclosed workplace.

Management must determine whether to provide a Designated Smoking Area (DSA) or prohibit smoking in the entire enclosed workplace. The regulation provides criteria for a DSA. The DSA shall have solid walls and ceiling, and a closable door. The walls must tightly join the floor and ceiling. Openings to adjacent enclosed workplaces are to be limited to make-up air inlets and the DSA must have a ventilation system that exhausts directly to the outdoors without recirculation to non-smoking areas. The DSA may not be a location where an employee, other than a custodial or maintenance employee, is required to work. The DSA must be under negative pressure sufficient to prevent smoke migration to enclosed workplaces.

In evaluating the most appropriate location for a designated smoking area, employers may want to consult with HVAC contractors or with ventilation engineers to determine the most cost-effective way to provide for a DSA. In many instances, creating a DSA may be a relatively simple matter.

The regulation also requires that when the DSA is cleaned, no one smokes in the area. Periodically, but at least quarterly employers must evaluate the ventilation of the smoking area to ensure that appropriate negative pressure is being maintained.

1. Ensure that in an enclosed workplace there is no smoking, except in a DSA.

The regulation requires employers to ensure that there is no smoking in an enclosed workplace, except in a DSA. All employees must be informed of the prohibition on smoking in an enclosed workplace. In addition, visitors, patrons, and other persons must be prohibited from smoking in the workplace. Ways to ensure compliance may include educating and training employees on the provisions of the regulation, removal of ashtrays, providing smoking areas outside, providing assistance or referral for those who want to stop smoking and providing a DSA meeting the regulation’s criteria.

4. Post at each entrance to the enclosed workplace a sign stating that smoking is prohibited.

Each entrance to the enclosed workplace must have a sign indicating that smoking is prohibited. The regulation has a performance-oriented requirement for the sign and therefore does not specify the type and design. There are many types and sizes on the market (see Appendix A). It is recommended that the sign be properly secured in a location that is plainly visible.

5.Enforce the prohibition on smoking in an enclosed workplace.

In order to comply with this regulation, an employer must adopt a proactive approach and remain committed to the intent of the regulation. Procedures must be in place for evaluation and enforcement. Management should have a disciplinary policy for those employees who violate the regulation. A periodic audit or evaluation of the workplace should be conducted. If violations are found, it may be necessary to reeducate or retrain employees.

Questions and Answers

Q.When did the regulation go into effect?

A.The regulation became effective on March 27, 1995.

Q.What places of business are covered by the regulation?

A.The regulation is applicable in an enclosed workplace where there is an employer/employee relationship, with the exceptions noted in Section .02 of the regulation. House Bill 1368, passed by the 1995 General Assembly and signed by the Governor, sets out separate requirements for the “hospitality” industry.

Q.Who enforces the regulation?

A.The regulation was adopted under the Maryland Occupational Safety and Health (MOSH) law and is enforced by MOSH.

Q.What is the penalty if I am found in violation?

A.There is no specific dollar penalty for being in violation of the regulation. Penalties up to $7,000 for serious violations will be determined in accordance with the MOSH law, as with any other violation found under the MOSH law and regulations. Copies of the MOSH law are available from the MOSH Office of Training and Education at (410) 880-4970 or (301) 483-8406.

Q.If all my employees smoke may I permit them to continue to smoke at work?

A.No. As the employer you are required to ensure there is no smoking in an enclosed workplace. Employees may smoke in appropriate designated smoking areas only.

Q.May I smoke in my home?

A.Concern has been voiced that a homeowner will be unable to smoke at home. Any portion of a private residence, which is not open to the public for business purposes is not covered.

Q.I am required to post a sign. What does the sign have to say?

A.Each employer must post at each entrance to the enclosed workplace a sign stating that smoking is prohibited. The exact wording of the sign is left to the employer as long as the message is clear. The sign may be freestanding or permanently affixed.

Q.May I post a sign that states smoking is permitted?

A.The only appropriate place to post a sign stating that smoking is permitted is in a designated smoking area.

Q.Where do I get the required sign?

A.Signs are available from the office supply companies, sign manufactures, printers, hardware stores, and safety supply companies.

Q.In buildings with multiple employer units (such as high rise buildings) must signs be placed at all entrances of each employer? Must signs be posted on each floor?

A.The building owner may post signs at building entrances to satisfy the requirements for all building tenants. Where the building owner does not post the required sign, individual employers must do so at entrances to their workplaces.

Q.In a multi-employer building a business next door allows patrons to smoke. The business is not covered by this regulation. Smoke migrates to my workplace. My employers are complaining. What am I required to do?

A.The regulation does not address every situation where environmental tobacco smoke (ETS) is present. As long as you have posted your workplace and prohibited smoking, you have met your obligations.

Q.What is a make-up air inlet?

A.A make-up air inlet is an opening, which supplies outside air to replace the volume of air exhausted from the room. This air is under positive pressure to the air in the room.

Q.How can I help employees who smoke?

A.Employers in Maryland already approach this in a variety of ways. For smoking cessation classes or programs see the Resources list in Appendix B.

Q.As a patron, where do I file a complaint?

A.MOSH only has authority over employers and employees. We have no authority to respond to complaints from patrons.

Q.As an employee, where do I file complaint?

A.Call 410-767-2189 to request a complaint form or write to MOSH at 1100 N. Eutaw Street, Room 611, Baltimore, Maryland 21201.

Q.Why was this regulation adopted?

A.The purpose of the prohibition is to protect employee’s from the effects of secondhand tobacco smoke, or ETS. There is now abundant scientific proof that breathing someone else’s tobacco smoke causes nonsmokers to contract the very illnesses most closely associated with direct smoking – lung cancer, which is almost always fatal, and heart disease. Estimates are that nationwide 3,000 nonsmokers die annually of ETS-related lung cancer, another 35,000 to 40,000 people die annually of ETS-related heart disease. Work is a primary source of exposure to ETS.

Prohibition on Smoking in an Enclosed Workplace

Compliance Guidelines for the Hospitality Industry

Table of Contents

Section Page

Introduction...... 1

Pertinent Definitions...... 2

Coverage for the Hospitality Industry...... 3

Code of Maryland Regulations 09.12.23 ...... 5

Labor and Employment Article, Section 5-314 ...... 8

Five Easy Steps to Compliance...... 10

Frequently Asked Questions ...... 12

Appendix A – Sample No Smoking Sign

Appendix B - Resources

Introduction

This publication is designed to assist employers in the hospitality industry in complying with the requirements of the Prohibition on Smoking in an Enclosed Workplace Regulation (COMAR 09.12.23) and with Labor and Employment Article, Section 5-314, which set forth specific requirements for the “hospitality industry”. These guidelines contain definitions, explanations of the regulation, and suggested steps for employers to come into compliance. Although these guidelines discuss the regulation and law, it is important that you familiarize yourself with each of them. Both COMAR 09.12.23 and Labor and Employment Article, Section 5-314 are included in this booklet. The regulation and law went into effect on March 27, 1995.

This publication specifically addresses employers with the following establishments:

• Bars & Taverns
• Restaurants
• Hotels/Motels
• Other Establishments with Alcoholic Beverages Licenses
• Clubs and Certain Charitable Organizations
• Fire Companies and Rescue Units (under certain conditions)

A separate publication prepared for non-hospitality industry employers may be obtained by calling the MOSH Office of Training and Education at (410) 880-4970 or (301) 483-8406.

Pertinent Definitions

1. Bar or Tavern*: For the purpose of this regulation, bar or tavern is defined as any establishment which:

• possesses an alcoholic beverage license for on premises consumption; and
• is generally recognized as a bar or tavern; and
• is not a restaurant.

1. Bar or Bar Area (within a restaurant)*: An area within a restaurant that is devoted to the serving of alcoholic beverages for the consumption by guests on the premises and in which the serving of food in the area is incidental to the consumption of the alcoholic beverages. The seating area at and immediately adjacent to the bar is considered part of the area.

1. Club*: An association or corporation, which is organized and operated exclusively for educational, social, fraternal, patriotic, political or athletic purposes and not for profit.

1. Designated Smoking Area (DSA)*: See COMAR 09.12.23.04.

1. Enclosed Workplace*: An indoor place of employment including the workplaces listed in COMAR 09.12.23.01. Some parts of this document use the term “establishment” to refer to an enclosed workplace.

1. Restaurant*: For the purposes of this regulation, a restaurant is defined as any establishment which:

• accommodates the public; and
• is equipped with a dining room with facilities for preparing and serving regular meals; and
• has average daily receipts from the sale of food greater than the average daily receipts from the sale of alcoholic beverages; or
• meets the definition of restaurant established by regulation of the Board of Liquor Commissioners in Baltimore City or an individual county.

1. Separate Enclosed Room (SER)+: A room, most commonly in a restaurant, in which patrons may smoke. The SER differs from the designated smoking area in that a ventilation system which exhausts to the outside is not required in the SER; nor is it required that the room be under sufficient negative pressure to prevent smoke migration.

*Taken from Article 2B, Section 1-102, Annotated Code of Maryland.

+As defined by Labor and Employment Article, Title 5, Section 314 (c)(1)(ii)

Coverage for the Hospitality Industry

All employers MUST prohibit smoking in their enclosed workplace unless the employer is listed in Section A or B below. Employers should note that if more stringent county or local laws are applicable, an employer must comply with the more stringent provisions, as well as COMAR 09.12.23 and Labor and Employment Article 5-314.

1. NO Restrictions. Smoking may be permitted in the following establishments:

1. Establishments where there is no employer-employee relationship (for example, a bingo run totally by volunteers, or a business run by a sole proprietor with no employees).

1. Private residences, which are not open to the public for business purposes.

1. Bar or Tavern that is not a restaurant or hotel as defined by the Maryland Alcoholic Beverages Law.

1. A Bar in a Hotel or Motel.

1. A Club with an Alcoholic Beverages License that allows consumption of alcoholic beverages on the premises of the club.

1. Partial Restrictions. Smoking may be permitted in portions of the following enclosed workplaces:

1. Hotel/Motel: Smoking is permitted in up to 40% of the sleeping rooms as determined by the proprietor. (Note: A separate Designated Smoking Area may be set up for hotel employees.)

1. Restaurants:

1. Restaurant Without an Alcoholic Beverages License: Smoking may be permitted in a separate enclosed room with an area not to exceed 40% of the total area of the restaurant.

1. Restaurant With an Alcoholic Beverages License: Smoking may be permitted in an area not to exceed 40% of the total area of the restaurant. The smoking area MUST be limited to one of the following:

(1)Bar or Bar Area; or