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The use of tobacco for smoking purposes is found to be increasingly dangerous and life-threatening, not only to the person smoking, but also to the nonsmoking person who is required to breathe air contaminated by environmental tobacco smoke. The most pervasive intrusion of the nonsmokers’ right to a healthy, unpolluted air space is the uncontrolled smoking in the workplace. The Boston City Council’s intent, by the passage of this Section, is to protect the health and welfare of the nonsmoker by regulating smoking and the discomforting effect it creates in the confined environment of the workplace.
(CBC 1985 16-35.1; Ord. 1993 c. 3)
(A) Because the smoking of burning tobacco or any other weed or plant is extremely dangerous to health and is a cause of material annoyance and discomfort to those employees who are exposed to it and have, of economic necessity, to work in the confines of a workplace, the Boston City Council hereby declares that the purposes of this act are:
(1) To protect the public health and welfare by regulating smoking in the workplace; and
(2) To minimize the toxic effects of smoking in the workplace by requiring an employer to adopt a policy that reasonably accommodates insofar as possible, the preferences of nonsmokers and smokers.
(B) If an employer allows employees to smoke in the workplace, the Section requires that:
(1) The employer make reasonable accommodations for the preferences of both nonsmoking and smoking employees;
(2) The employer must give particular preference to employees who as a result of either a cardiovascular illness, pulmonary illness or any other physical condition affecting the eyes, nose and throat, are sensitive to the discomforts of tobacco smoke;
(3) The employer use without incurring additional expense to the extent possible existing architectural design and ventilation systems to separate designated smoking areas from designated nonsmoking areas;
(4) All nonsmoking areas to be designated and conspicuously marked with signs; and
(5) The employer be prohibited from terminating without due cause or discriminating against any employee because the employee exercised his or her right under this act.
(CBC 1985 16-35.3; Ord. 1993 c. 3)
For the purpose of this Section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BOARD OF HEALTH. The municipal Department, division, unit or body of the municipality charged with regulating and/or enforcing the health laws or regulations in the Massachusetts community of Boston.
BOSTON CITY COUNCIL. The law-making body of the community of Boston in the Commonwealth of Massachusetts.
EMPLOYEE. Any person who is employed by any employer in consideration for direct or indirect monetary wage or profit.
EMPLOYER. Any person who employs the service of an individual person.
ENCLOSED. An area, other than a public lobby, which is closed in by a roof and four walls or sides or partitions, either complete or partial, with appropriate openings for ingress and egress.
OFFICE SPACE or OFFICE SPACES or WORK SPACE or WORK SPACES. Any area occupied by an employee during the course of his or her employment, including, but not limited to, hallways, waiting areas, restrooms, lounges, eating areas, as well as enclosed motor vehicles, ships, boats and airplanes.
PERSON. Any individual person, firm, partnership, association, corporation, company, organization or legal entity of any kind.
SMOKING or TO SMOKE or SMOKE. The inhaling, exhaling, burning or carrying of any lighted cigarette; cigar, pipe or other article; or paraphernalia for tobacco or any other weed or plant.
WORKPLACE. Any enclosed area of a structure or portion thereof intended for occupancy by any private or public business entities which will provide primarily, but not exclusively, clerical, professional or business services of the business entity, or which will provide primarily, but not exclusively, clerical, professional or business services to other business entities or to the public, at that location. The WORKPLACE includes, but is not limited to, office spaces or work spaces in office buildings, office spaces or work spaces in all municipal office buildings, office spaces or work spaces in all public buildings, office spaces or work spaces in all federal office buildings where other than federal employees are employed and the federal regulations restricting smoking in federal buildings are not applied, medical office waiting rooms or areas and other medical treatment facilities, all manufacturing plant office spaces or work spaces not under the control of the federal government regulations restricting smoking in federal buildings or the General Service Administration (“GSA”) regulations restricting smoking in federal buildings.
(CBC 1985 16-35.4; Ord. 1993 c. 3)
(A) Each employer who operates a workplace in Boston must implement, maintain and conspicuously post, for all employees to see, a written smoking policy which will contain, at a minimum, the following provisions and requirements.
(1) Any employee may object to his or her employer about the smoke hazard or discomfort in his or her workplace. Using existing means of ventilation or separation or partition of the work space, the employer must attempt expeditiously, within 30 days of the initial date of objection, to reach a reasonable accommodation, insofar as possible, between the preferences of all the nonsmoking and smoking employees. However, an employer is not required by this Section to make any expenditures or structural changes to accommodate the preferences of nonsmoking or smoking employees.
(2) Where the employer prohibits smoking in any portion of the workplace, the area(s) in which smoking is prohibited must be clearly and conspicuously marked with signs.
(B) The employer’s smoking policy must be announced to all employees and posted conspicuously in all workplaces under the employer’s jurisdiction in Boston.
(C) Anyone who becomes an employer in Boston after the passage of this Section must, within three months of becoming an employer, adopt, implement, maintain and conspicuously post for all employees to see, a written smoking policy with all the provisions mentioned herein.
(CBC 1985 16-35.5; Ord. 1993 c. 3) Penalty, see Subsection 16-35.7
This Section is not intended to regulate smoking in the following places and under the following conditions within Boston:
(A) A private home which may serve as a workplace;
(B) Any office space leased or rented by a sole independent contractor for his or her own use;
(C) A business used exclusively for the sale of tobacco products;
(D) (1) Provided further, that no employer or Agent of any employer shall require as a condition of employment that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his or her employment or otherwise discriminate against any individual with respect to his or her compensation terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his or her employment. Provided, however, that any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this statute; and provided that employers within the commonwealth which are regulated under M.G.L. Chapter 22, Section 9A; Chapter 26, Section 2; Chapter 31, Section 64; or Chapter 41, Section 101A shall be exempt from the provisions of this statute.
(2) In any civil action alleging a violation of this provision, the court may:
(a) Award punitive damages to a prevailing employee or prospective employee in addition to any award of actual damages;
(b) Award reasonable attorneys’ fees and costs to a prevailing employee or prospective employee; and
(c) Afford injunctive relief against any employer who commits or proposes to commit a violation of this provision.
(E) City Hall cafeterias.
(CBC 1985 16-35.6; Ord. 1993 c. 3)
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