No Employees? Attorney General Says Anti-Smoking Laws May Still Apply

Feb 5 2014 - Health and Safety, Workplace Policies - Gail Cecchettini Whaley

If you are an owner-operated business — you own the business and run the day-to-day operations with no employees of your own — you should be aware that California’s laws prohibiting smoking in the workplace can still apply to you.

California’s Attorney General issued an opinion on this issue in late 2013, in response to this question from a member of California’s Legislature: When does an owner-operated business with no employees constitute a place of employment subject to the state’s prohibition on smoking in the workplace?

The Attorney General’s answer:

An owner-operated business with no employees nevertheless constitutes a “place of employment” under Labor Code section 6404.5 when employment of any kind is carried on at the business location — that is, even when such employment is carried on by persons who are employed by someone other than the business owner.

Under Labor Code section 6404.5, “No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.”

According to the AG, if the owner-operator performs all of his or her own services without paid help of any kind, the smoking prohibition does not apply. But, if the owner-operator pays for workers to come onto its premises to perform any type of work, the smoking prohibition applies.

For example, if you own your own consulting business but hire “temps” to come onto your premises to perform accounting services the smoking prohibition applies. Workers coming onto your premises to provide clerical, janitorial, maintenance or repair services, for instance, are subject to the anti-smoking law.

The AG noted the legislative intent to protect workers from exposure to tobacco related products in enclosed place of employment and, accordingly, employees working for the benefit of an owner-operator should be covered even if their direct employment relationship is with someone other than the owner-operator.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

CalChamber members can read up on Smoking in the Workplace in the HR Library. Not a member? Learn more about what HRCalifornia can do for you.

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