AN ACT Relating to smoking; adding a new chapter to Title 70 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. This chapter shall be known and cited as the workplace clean air act.

NEW SECTION. Sec. 2. (1) Because the smoking of tobacco or any other weed or plant is a danger to health and is a cause of material annoyance and discomfort to those who are in the presence of smoke in confined places, the legislature declares that the purposes of this chapter are: (a) To protect the public health and welfare by regulating smoking in the workplace; and (b) to minimize the toxic effects of smoking in the workplace by requiring employers to adopt policies that will accommodate the preferences of nonsmokers and smokers. If a satisfactory accommodation cannot be reached between nonsmokers and smokers, the legislature intends that employers accommodate all affected nonsmoking employees.

(2) This chapter is not intended to create any right to smoke or to impair or alter an employer's prerogative to prohibit smoking in the workplace. If an employer allows employees to smoke in the workplace, this chapter requires: (a) That the employer make accommodations for the preferences of both nonsmoking and smoking employees; and (b) if a satisfactory accommodation to all affected nonsmoking employees cannot be reached, that the employer accommodate all affected nonsmoking employees.

NEW SECTION. Sec. 3. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:

(1) "Employee" means any person who is permanently employed by an employer in consideration for direct or indirect monetary wages or profit.

(2) "Employer" means any person who employs the services of four or more individual persons.

(3) "Enclosed" means closed in by a roof and four walls with appropriate openings for ingress and egress.

(4) "Person" means any individual, firm, partnership, association, public or private corporation, company, organization, or any other legal or governmental entity.

(5) "Smoking" or "to smoke" means and includes inhaling, exhaling, burning, or carrying any lighted smoking equipment for tobacco or any other weed or plant.

(6) "Workplace" means any enclosed area of a structure or portion thereof intended for use by employees, including restrooms and cafeterias.

NEW SECTION. Sec. 4. (1) Each employer who operates a workplace in this state shall, within six months of the effective date of this section, adopt, implement, and take reasonable steps to maintain a written smoking policy that provides at a minimum that:

(a) Any nonsmoking employee may object to the employer about smoke in the workplace. Using already available means of ventilation, separation, or partition of space, the employer shall attempt to reach a reasonable accommodation between the preferences of nonsmoking and smoking employees. An employer is not required to make any expenditures or structural changes to accommodate the preferences of nonsmoking or smoking employees.

(b) If an accommodation that is satisfactory to all affected nonsmoking employees in a workplace cannot be reached, the preferences of nonsmoking employees shall prevail. If the employer prohibits smoking in a workplace under this section, the area in which smoking is prohibited shall be clearly marked with signs.

(2) The smoking policy shall be announced within three weeks of the adoption of the policy to all employees and posted conspicuously in all of the employer's workplaces.

NEW SECTION. Sec. 5. This chapter is not intended to regulate smoking in the following places and under the following conditions:

(1) A private home that serves as a workplace;

(2) A workplace leased or rented by a sole independent contractor, provided there are no employees;

(3) A private enclosed workplace which has a separate ventilation system and is occupied exclusively by smokers, even though such workplace may be visited by nonsmokers, excepting places in which smoking is prohibited by the director of community development, through the director of fire protection, or by other law, ordinance, or rule; or

(4) A bar, tavern, bowling alley, tobacco shop, hotel guest rooms or restaurant as defined in RCW 70.160.020(3).

NEW SECTION. Sec. 6. The director of labor and industries shall:

(1) Provide notice to any person violating section 4 or 9 of this act which notice shall include, if applicable, provisions about how the violation could be corrected; and

(2) Request the county prosecuting attorney to maintain an action: (a) For a writ of mandamus to compel compliance with and to enforce this chapter, to cause the correction of any such violation; and (b) for assessment and recovery of a civil penalty for the violation.

NEW SECTION. Sec. 7. (1) An employer who knowingly violates section 4 or 9 of this act is liable for a civil penalty, not to exceed one hundred dollars, which shall be assessed and recovered in a civil action brought in the name of the state in any court of competent jurisdiction. Each day the violation is committed or permitted to continue after proper notice from the department of labor and industries constitutes and is punishable as a separate offense. Any penalty assessed and recovered in an action under this subsection shall be transmitted to the state general fund.

(2) An employee who knowingly violates the smoking policy in his or her workplace is liable for a civil penalty, not to exceed one hundred dollars, which shall be assessed and recovered in a civil action brought in the name of the state in any court of competent jurisdiction. Each day the violation is committed after proper notice by the employer constitutes and is punishable as a separate offense. Any penalty assessed and recovered in an action under this subsection shall be transmitted to the state general fund.

NEW SECTION. Sec. 8. In enforcing this chapter, the department of labor and industries is responsible for receiving complaints and establishing enforcement rules pursuant to chapter 34.04 RCW.

NEW SECTION. Sec. 9. It shall be unlawful for an employer to retaliate against or in any manner discriminate against any employee because such employee exercises any rights under or seeks compliance with any provision of this chapter.

NEW SECTION. Sec. 10. Any employee aggrieved by a violation of this chapter may bring an action for a writ of mandamus to compel compliance with and to enjoin further violations of this chapter.

NEW SECTION. Sec. 11. Sections 1 through 10 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 12. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.