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(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)
(A) The Boston Board of Health, having received a written and signed letter of complaint from an employee citing a violation of this Section, must enforce, within 30 days, the entire Section against violations by either of the following actions:
(1) Serving written notice to comply to an employer, with a copy of the notice to the complaintant, requiring the employer to correct, within 30 days, any violation of any Section of this Subsection. The employer must also be sent a copy of this Section at the time notice is served. Upon receiving a second signed complaint at the Boston Board of Health for the same or continued violation by the same employer, and failing all other attempts by the Boston Board of Health to expeditiously; and
(2) Within 30 days, mediate the complaint, the complaint must be resolved by calling upon the attorney for Boston to maintain promptly an action for injunction to enforce the provisions of this act, to cause the correction of such violation of Section, and for assessment and recovery of a civil penalty for such violation.
(B) An employer who violates this act shall be liable for a civil penalty, not to be less than $50 or exceed $300, which penalty shall be assessed and recovered in a civil action brought by the attorney for Boston in any court of competent jurisdiction.
(C) In undertaking the enforcement of this Section, the city is assuming an undertaking only to promote the health and general welfare of the working public. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
(D) Any revenues accumulated from violations of this Section should be used only to increase the public awareness of this Section or for public health programs related to this issue and not reverted to the city’s General Fund.
(E) If any provision of this Section is invalid or unenforceable by a court of competent jurisdiction, the other provisions of the act shall not be affected thereby, but shall continue in full force and effect.
(CBC 1985 16-35.7; Ord. 1993 c. 3)
All sales of cigarettes by vending machines within the city shall be prohibited unless:
(A) The vending machine is located within the immediate vicinity, plain view and control of a responsible employee, so that all purchases are observable and controllable as if cigarettes were sold over the counter;
(B) The vending machine must not be located in a coatroom, restroom, unmonitored hallway, outer waiting area or similar unmonitored area and must be inaccessible to the public when the establishment is closed;
(C) The vending machine is equipped with a lock-out device approved by the Board of Health. Said device shall lock-out sales from vending machines unless an employee releases the locking mechanism. The release mechanism must not allow continuous operation of the vending machine and must not be accessible to customers. Vending machines shall be posted with a sign stating that the machine is equipped with a lock-out device and identifying the person(s) to contact to purchase cigarettes from the machine;
(D) All cigarette vending machines must display a conspicuous sign stating that it is illegal for minors to purchase cigarettes; and/or
(E) The use of the premises is restricted to persons over the age of 18.
(CBC 1985 16-35.1; Ord. 1993 c. 9) Penalty, see Subsection 16-36.3
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