Attorney General Determines Business Location Where Employees Work For Someone Other than the Business Owner is a "Place of Employment" Subject to State Anti-Smoking Law

A state legislator requested an opinion from the Attorney General about whether a business site, at which the people working are employed by someone other than the business owner, is a "place of employment" as defined by the California Labor Code, and therefore subject to the state-mandated smoking ban for enclosed workplaces.  In Opinion No. 12-901, the Attorney General opined that such a workplace is a "place of employment" and employees such as janitorial workers, temporary clerical, or repair and maintenance workers are subject to the anti-smoking law.

Labor Code Section 6404.5 states, "No employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment."  The Labor Code further defines "employee" as "every person who is required or directed by any employer to engage in any employment or to go to work or be at any time in any place of employment."  The phrase "place of employment" is also broadly defined to mean "any place, and the premises appurtenant thereto, where employment is carried on."  The question before the Attorney General of whether Section 6404.5 applied, hinged on whether the business was a "place of employment." 

Given those definitions, the Attorney General stated that a place of business where the owner-operator has no employees and performs all of his or her own services without any paid help from any other persons would not be considered a place of employment.  However, the Labor Code requires that "every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein."  The Attorney General found that the language does not limit "employees therein" to those employed directly by the owner-operator of the business location.  It is not necessary that the owner-operator be the primary employer of the employees on the premises for the location to be characterized as a "place of employment."  It is enough, the Attorney General said, that the location is a place "where employment is carried on.”

This conclusion is consistent with the Legislature's specific intent to prohibit "all persons" from smoking in an enclosed space at a place of employment.  There is no reason to conclude that the protections from tobacco smoke provided workers by Section 6404.5 should be limited only to those employed by the owner-operator of the business.  Therefore, the Attorney General concluded that a place of business where employees are employed by someone other than the business owner is a "place of employment" and subject to the ban on smoking in enclosed workplaces.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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