AN ACT Relating to the workplace clean air act; 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. (1) The legislature recognizes the surgeon general's determination that the inhalation of passive tobacco smoke in the workplace causes lung cancer and other diseases in healthy nonsmokers. The legislature also recognizes that an employee's right to a safe workplace includes a safe workplace free of tobacco smoke. To protect the public health and welfare, the legislature declares that it is the public policy of the state of Washington to provide all employees with a safe workplace free of tobacco smoke. To this end, 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 absolute prerogative to prohibit smoking in any portion of the workplace nor shall anything in this chapter prevent an employer from totally prohibiting smoking in all workplace areas. To the extent that an employer permits smoking in the workplace, then nothing in this chapter shall abrogate any collective bargaining agreement currently in effect which provides for or specifies a method for resolving workplace smoking issues. This chapter shall not be construed to prohibit future collective bargaining agreements from establishing alternative methods for resolving workplace smoking issues, including but not limited to a total ban on smoking in the workplace, designated smoking areas, employer-paid smoking abatement programs, and structural ventilation modifications. 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. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter:

(1) "Employee" means any person who is employed by an employer in consideration for direct or indirect monetary wages, salary, 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 tobacco product or 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. 3. (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 enforce and 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. 4. 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. 5. Any employer that operates a workplace in this state may implement and enforce a smoking policy prohibiting workplace smoking except in an enclosed smoking room which is physically separate from areas used by nonsmokers. Any employer that implements and effectively enforces such a smoking policy shall be entitled to a rebuttable presumption of law that the employer has satisfied its common law duty to exercise reasonable care to protect its employees from passive tobacco smoke in the workplace.

NEW SECTION. Sec. 6. Any employee aggrieved by a violation of this chapter may bring a civil action against the employer for damages caused by such violation or for an injunction to enjoin further violations of this chapter. An employee who prevails in such a civil action shall be awarded, in addition to any other relief, his or her reasonable attorneys' fees and costs.

NEW SECTION. Sec. 7. 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. 8. This chapter shall be known and cited as the Washington workplace clean air act.

NEW SECTION. Sec. 9. Sections 1 through 8 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 10. 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.