IBA: Indiana's No-Smoking Law and Potential Penalties to Employers for Failure to Adhere

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By Christopher S. Drewry,

Drewry Simmons Vornehm LLP

The IndyBar Labor & Employment Section posts articles written by Executive Committee members on its section page throughout the year. Check out one article below and visit the section webpage at

Back in March (and mixed in with other notable legislative changes like Right to Work and Restricting Access to Conviction Records), Governor Mitch Daniels signed into law a bill imposing statewide restrictions on smoking in public places. This law went into effect on July 1, 2012, and will affect all Indiana employers. While employers likely have already taken certain actions under this new law, the failure to follow the provisions could result in steep penalties, up to and including $10,000 in fines.

If you recall, smoking is now prohibited in most Indiana workplaces (exceptions being places like riverboats, horse racing facilities and other gaming facilities, retail tobacco stores, and bars that do not employ individuals under the age of 18 or allow individuals under the age of 21, other than employees, to enter, among other things). The law requires employers to prohibit smoking in areas within eight feet of a public entrance to a “place of employment” or a “public place.”

Additionally, since July 1st, employers have had additional obligations beyond merely prohibiting smoking. First, all employees and prospective employees must be informed of the smoking prohibition applying to the place of employment. This could be accomplished by including it in the employee handbook, or for prospective employees, by inserting a statement about the policy in the employment application. Next, employers are required to remove any and all ashtrays and smoking paraphernalia from all areas of public places and places of employment where such smoking is prohibited. Lastly, employers must post “conspicuous signs” at each public entrance which says “State Law Prohibits Smoking Within 8 Feet of this Entrance.” For those businesses that fall under the exception to this prohibition, they too must post conspicuous signs that read “WARNING: Smoking Is Allowed In This Establishment” or some other similar language.

While an individual who smokes where prohibited commits a Class B infraction (or up to a Class A infraction with at least three prior infractions), employers too may be penalized where they fail to abide by the three aforementioned proactive obligations. State agencies, including the State Department of Health, county health departments, and law enforcement agencies can issue fines ranging from $1,000 for a first violation up to $10,000 if there are three violations, and employers may also be enjoined for a failure to abide by the provisions of the law.

Finally, one other potential issue for employers in dealing with the prohibition of smoking is the fact that Indiana also has a statute prohibiting discrimination against smokers in employment and hiring. Further, the Americans with Disabilities Act may come into play for individuals who suffer diseases as a result of smoking.

Ultimately, it is important that employers be aware of the smoking ban and to implement the proper procedures in adherence of the rules. Additionally, it is important to note that the state law specifically authorizes local governments to enact more restrictive ordinances. Therefore, employers must follow the requirements of the more restrictive local ordinances over the state ban. Whether it involves the employer’s upfront obligations with the state law or other local ordinance, the smoking policies that have been put into place, or the enforcement of rules, counsel should take notice of the potential issues that can arise with the no-smoking law and ensure that their clients are in compliance.•


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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.