Question: What state laws govern smoking on bank property and how do we comply?

Evolution of the Smoke Free Workplace

Almost twenty years ago, the state legislature enacted the Illinois Clean Indoor Air Act. The law prohibited smoking in most businesses except in designated smoking areas. The statute, though well intentioned, failed to live up to its lofty title because it did not require that all smoking areas be established outdoors or that business owners invest in ventilation systems or create physical barriers to minimize the intrusion of smoke into no-smoking areas.

Two years later, the Illinois General Assembly bowed to the powerful tobacco lobby and enacted the Right to Privacy in the Workplace Act. This law makes it unlawful for an employer to discriminate against any individual "because the individual uses lawful products off the premises of the employer during nonworking hours." The law essentially gives employees a statutory right to smoke before work, after work and while on breaks and meal periods so long as the employee is off the physical premises of the employer.

The tide has turned. The Smoke Free Illinois Act, which replaces the Illinois Clean Indoor Air Act, took effect on January 1, 2008. The Act prohibits smoking inside every financial institution in Illinois and within 15-foot smoke free zones outside the facility. The law requires Illinois banks to conspicuously post a specific "No Smoking" sign within its facility as well as at every entrance. The law further requires that ashtrays be removed from any area where smoking is prohibited. The courtesy ashtray at your door that encourages your customers not to litter the ground with their cigarette butts now constitutes a violation of law and those butts on the ground outside your entrance constitute evidence of non-compliance. The law provides for significant penalties and allows public agencies and concerned employees and citizens to sue you for injunctive relief.

The Smoke-Free Zones

Although the Act mandates a bank to prohibit smoking inside its facilities and within a 15-foot zone around doors, windows that open, and ventilation intakes, there is no requirement that you establish an outdoor smoking area on your premises. The statute specifically allows you to designate any non-enclosed area, including outdoor areas, as a smoke-free zone, provided you post "No Smoking" signs in the designated area that conform to the statute. Remember, however, that the Right to Privacy in the Workplace Act gives employees the right to smoke off premises during nonworking time.

Signage Must be Specific

The statute contains two posting requirements. First, "No Smoking signs or the international No Smoking symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it, shall be clearly and conspicuously posted in each public place and place of employment where smoking is prohibited . . . ." You should post this sign where you maintain the notices required by other state and federal employment laws. Second, "Each public place and place of employment where smoking is prohibited by the Act shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited." If you have two doors in your entryway, you only need to have one sign posted in the entryway itself, not on each door.

Under rules proposed by the Illinois Department of Public Health, which as of press time have not been finalized, these "No Smoking" signs must be no smaller than 5 inches by 7 inches and must contain: the telephone number for registering a complaint; the website for obtaining a complaint form; and must be clearly legible to an individual with normal vision from a distance of 5 feet. Although it remains to be determined whether the proposed signage rule will be finalized, a sign that complies with the proposed rule is available for free downloading at the Department of Public Health's website (http://www.smoke-free.illinois.gov/smokefreesigns.htm).

Management Responsibilities

Under the proposed rules, bank management also must:

• Not permit smoke to drift or infiltrate into a building or facility through an entrance, a window, a ventilation system, or other means.
• Communicate that smoking is prohibited to all existing employees and applicants for employment.
• Inform an individual smoking in violation of the Act that he or she is in violation and request the individual to stop smoking immediately.
• Not discharge, refuse to hire or in any other manner, retaliate against any individual for exercising any right under the Act, including reporting a violation.

Pick Up Those Butts

In determining whether a violation has occurred, the enforcement agency considers, among other things: "The presence of ashes, cigarette butts or filters, or cigar stubs in an area where smoking is prohibited." Accordingly, the bank should designate one or more employees to dispose of smoking debris within your smoke free zones on a daily or more frequent basis.

Enforcement and Fines

The Act can be enforced by the Illinois Department of Public Health, local public health departments and local law enforcement agencies. The fines for violating the Act can be substantial. A customer or employee who smokes in an area where smoking is prohibited is subject to a fine in an amount not less than $100 and not more than $250. The bank is subject to a fine not less than $250 for the first violation, not less than $500 for the second violation within one year after the first violation, and not less than $2,500 for each additional violation within one year. Please keep in mind that each day that a violation occurs, i.e., failure to post "No Smoking" signs, constitutes a separate violation.

Take Reasonable Steps to Avoid Public Enforcement Actions

As a practical matter, it seems unlikely that your bank will subject itself to stiff fines and government enforcement actions if you make reasonable efforts to comply with the Act. Add a No Smoking Policy to your handbook that specifically defines the bank's smoke free zones. Send a memo to all employees advising them of your No Smoking Policy. Advise applicants for employment of your policy as well. Periodically audit your signage (as well as other required postings) and document on a signed and dated form that your "No Smoking" signs remain posted. Discard ashtrays or move them outside of your smoke free zones. Keep your entry area free from evidence of smoking. Finally, document every instance that you have enforced your policy, even if it merely involves politely asking a customer not to smoke near the entrance. Taking these steps should ensure that the bank will not be fined and that the government will not initiate an enforcement action against you.

Private Enforcement

On the other hand, all it takes is a bad attitude and a filing fee for one of your employees to sue you for violating this new law. The Act allows "any individual personally affected by repeated violations" to obtain a state court injunction to prohibit further violations. Keep in mind that employees may not be discriminated against because they have exercised their rights under the Act, including the right to file a complaint or initiate such a lawsuit.

About the author: Leonard W. Sachs serves as partner-in-charge of the Labor and Employment Practice Group at Howard & Howard. For more information, contact Lenny at 309-999-6313 or e-mail him at lsachs@howardandhoward.com.