06/16/2010
The Kansas Indoor Clean Air Act goes into effect July 1, 2010, and imposes new obligations on employers and businesses located within the state. Passage of the Act this past legislative session makes Kansas the 28th state to institute a state-wide smoke-free law. As summarized on the Kansas Smoke-Free website, which is sponsored by the Kansas Department of Health and Environment, the purpose of the Act "is to protect the public health by reducing exposure to secondhand smoke in public places and places of employment."
Under the Act, an "employer" is defined as "any person, partnership, corporation, association or organization, including municipal or nonprofit entities, which employs one or more individual persons." In addition to this specific employer provision, the Act applies to enclosed "public places" with a few limited exceptions. A "place of employment" is broadly defined to include enclosed areas under the control of a public or private employer, expressly capturing "stairwells," "employee lounges," and "restrooms" if those areas are "used by employees during the course of employment." Under these broad definitions, it will be virtually impossible for a business not to fall under the purview of the Act.
The Indoor Clean Air Act seeks to protect employees from exposure to secondhand smoke in a place of employment by mandating that employers:
Employers also have the obligation of taking appropriate steps to ensure their employees and all outside visitors comply with the prohibition against smoking. Specific provisions also apply to daycares, hotels and certain medical facilities.
While the Act expressly applies to "enclosed areas," it further specifies that it will not apply to "the outdoor areas of any building or facility beyond the access points of such building or facility." The "access point" of a building is defined as "the area within a ten foot radius outside of any doorway, open window or air intake leading into" the covered facility. Accordingly, for those employers desiring to accommodate its smoking employees, smoking areas may be created if those areas are not enclosed and meet this geographic limitation.
Violators of the Act will face fines in an amount not to exceed $100 for the first violation, $200 for a second violation within a one-year period, and $500 per violation for each successive violation within the one-year period. In addition to smoking in a restricted area, liability may occur when a person, "who owns, manages, operates, or otherwise controls the use of any public place, or other area where smoking is prohibited" allows smoking to occur. A person is "deemed to allow smoking to occur" if: (1) the individual has knowledge that smoking is occurring; and (2) "acquiesces to the smoking under the totality of the circumstances." In determining the proper penalty, the Act further provides that a separate violation exists for "each individual allowed to smoke by a person who owns, manages, operates or otherwise controls" the property. This provision should serve as a deterrent to those employers who simply want to overlook the requirements of the Act.
Finally, the Act creates whistleblower protection for employees, applicants or customers who report or attempt "to prosecute" a violation of the Act. Employers are prohibited from discharging, refusing to hire, or "in any manner" retaliating against an employee, applicant or customer who engages in this protected activity.
For more information regarding the Kansas Indoor Clean Air Act or other requirements of state law for employers in Kansas, please contact Stephanie Scheck or Mindy McPheeters.