New Kansas “No-Smoking” Law Takes Effect July 1, 2010
June 7, 2010
by Richard L. Connors
Stinson Morrison Hecker LLP
Copyright © 2010
Smoking will be prohibited in most indoor locations in Kansas – including places of employment and within 10 feet of any doorway, open window or air intake where smoking is prohibited – under a new Kansas state law that takes effect July 1, 2010. In addition, Kansas employers must adopt a written no-smoking policy, timely communicate such policy to employees and new hires, and post a new no-smoking sign in the workplace. The following summarizes key provisions of the new Kansas law applicable to private sector employers.
Must Provide a Smoke-Free Workplace – Kansas employers that have a place of employment that is "an enclosed area" must provide a smoke-free workplace for all employees.
Smoking Prohibited in the Workplace – No person may smoke in an enclosed area, including but not limited to:
- Any place of employment – including (but not limited to) work areas, auditoriums, elevators, private offices, employee lounges and restrooms, conference and meeting rooms, classrooms, employee cafeterias, stairwells and hallways that is used by employees during the course of employment;
- Lobbies, hallways and other common areas in private buildings; and
- Access points of all buildings and facilities – meaning the area within a 10 foot radius outside of any doorway, open window or air intake leading into a building or facility.
The "enclosed area" where smoking is prohibited includes both private enclosed offices and indoor cubicles. In fact, the new law defines "enclosed area" to mean "all space between a floor and ceiling which is enclosed on all sides by solid walls, windows or doorways which extend from the floor to the ceiling, including all space therein screened by partitions which do not extend to the ceiling or are not solid or similar structures." Moreover, smoking is prohibited at all times in such areas – including when it is not open to the public (including after hours, on weekends or on holidays).
Where Smoking is Permitted – The new Kansas law does not prohibit smoking in the outdoor areas of any building or facility beyond the access points of such building or facility – i.e., beyond the 10 foot radius outside of any doorway, open window or air intake leading into such building or facility.
Employer Must Have Written No-Smoking Policy – Kansas employers must adopt and maintain a written smoking policy which must prohibit smoking without exception in all areas of the place of employment. Such policy must be communicated:
- To all current employees within one week of its adoption; and
- To all new employees upon hiring.
Each employer also must provide a written copy of the smoking policy upon request to any current or prospective employee.
Employer Must Post No-Smoking Sign – Kansas employers must post in conspicuous place signs displaying the international no smoking symbol and clearly stating that smoking is prohibited by state law. No-smoking signs (in English and Spanish) may be downloaded from the Kansas Department of Health and Environment website.
Unlawful to Fail to Comply with New Law – It is unlawful for any person who owns, manages, operates or otherwise controls the use of any area where smoking is prohibited to fail to comply with all or any of the provisions of the new Kansas no-smoking law – including the failure to adopt, maintain and communicate the no-smoking policy or post the no-smoking sign.
Unlawful to Allow Smoking Where Prohibited – It is unlawful for any person who owns, manages, operates or otherwise controls the use of any area where smoking is prohibited to allow smoking to occur where prohibited by law. Any such person will be deemed to allow smoking to occur if they (1) have knowledge that smoking is occurring, and (2) acquiesces to the smoking under the totality of the circumstances.
Unlawful to Smoke Where Prohibited – It is also unlawful for a person to smoke in area where smoking is prohibited.
Penalties for Violations – Any person who violates the new Kansas law is guilty of a cigarette or tobacco infraction punishable by a fine:
- Not exceeding $100 for the first violation;
- Not exceeding $200 for a second violation within a one-year period after the first violation; or
- Not exceeding $500 for a third or subsequent violation within a one-year period after the first violation.
The number of violations within a year is measured by the date the smoking violations occur. Each individual allowed to smoke where smoking is prohibited will be considered a separate violation for purposes of determining the number of violations. Local law enforcement (police or sheriff) have the authority to enforce the new Kansas law.
No Retaliation – No employer may discharge, refuse to hire or in any manner retaliate against an employee, applicant for employment or customer because the employee, applicant or customer reports or attempts to prosecute a violation of the new Kansas law.
Covered Employers – Employers covered by the new Kansas law includes any person, partnership, corporation, association or organization (including municipal or nonprofit entities) which employs one or more individual persons.
Effective Date – The new Kansas law takes effect on July 1, 2010.
Local Laws – Where local clean indoor air laws have provisions stricter than the Kansas state law, those local provisions will prevail. However, where local laws have provisions less strict than the state law, state law provisions will prevail effective July 1, 2010.
Other Areas Where Smoking is Prohibited – In addition to places of employment, the new Kansas law also prohibits smoking in most of the following indoor locations in Kansas:
- Public places.
- Restaurants.
- Bars.
- Within 10 feet of any doorway, open window or air intake where smoking is prohibited.
- Taxicabs and limousines.
Exempt from New Law – The following locations are exempt from the new Kansas law:
- Tobacco shops that derive not less than 65% of gross receipts from the sale of tobacco.
- Gaming floors of lottery gaming facilities or racetrack gaming facilities.
- Up to 20% of hotel/motel sleeping rooms.
- Designated indoor areas of private outdoor recreational clubs (i.e. golf clubs, hunting clubs) where minors are prohibited.
- Private homes or residences not used as a day care home.
- Designated smoking areas of adult care homes and long-term care facilities.
- Class A and B private clubs licensed before July 1, 2009, that notify the Secretary of the Kansas Department of Health and Environment by September 28, 2010 of their intent to allow smoking.
More Information – The Kansas Department of Health and Environment website includes the text of the new law, frequently asked questions, a fact sheet and no-smoking signs.
Richard L. Connors is an attorney with Stinson Morrison Hecker LLP, one of the country's largest law firms with more than 300 attorneys in more than 45-industry-focused areas. Mr. Connors represents management exclusively in employment and labor law.
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