State of MARYLAND: SMOKE-FREE WORKPLACE LAWS

[The following regulation was issued by the Maryland Division of Labor and Industry and covers smoking in enclosed workplaces; after a court challenge which failed, this regulation went into effect on March 28, 1995. The regulation does have certain exceptions as required by law; see law below. We have also included below a synopsis, prepared by the Smoke-Free Maryland Coalition, of these Maryland laws on smoking in enclosed workplaces.]

REGULATION:

09.12.23

Title 09 DEPARTMENT OF LICENSING AND REGULATION

Subtitle 12 DIVISION OF LABOR AND INDUSTRY

Chapter 23 Prohibition on Smoking in an Enclosed Workplace

Authority: Labor and Employment Article, 2-106(b)(4) and 5-312, Annotated Code of Maryland

09.12.23.01

.01 Definitions.

A. In this chapter, the following terms have the meanings indicated.

B. Terms Defined.

(1) Enclosed Workplace.

(a) "Enclosed workplace" means an indoor place of employment.

(b) "Enclosed workplace" includes, but is not limited to:

(i) An indoor work area;

(ii) A vehicle when an employee uses it in the course of employment and it is occupied by more than one employee;

(iii) An employee lounge or restroom;

(iv) A conference and meeting room;

(v) A classroom;

(vi) A cafeteria operated by an employer for use by its employees;

(vii) A hallway;

(viii) A restaurant;

(ix) A bar or tavern;

(x) A sleeping room in a hotel or motel; and

(xi) An assembly, conference, convention, or meeting establishment or enclosed portion of the establishment.

(2) "Smoking" means to use or carry any lighted:

(a) Cigar;

(b) Cigarette;

(c) Pipe; or

(d) Other tobacco product of any kind.

09.12.23.02

.02 Exclusions.

This regulation does not apply to:

A. A tobacconist establishment that engages primarily in the sale of tobacco and tobacco-related accessories;

B. A vehicle, when used in the course of employment and occupied by only one individual; and

C. Smoking that is necessary to the conduct of scientific research into the health effects of tobacco smoke conducted at an analytical or educational laboratory.

09.12.23.03

.03 Employer Requirements.

Except as provided in Regulation .04 of this chapter, an employer shall:

A. Ensure that in an enclosed workplace there is no smoking; and

B. Post at each entrance to a place of employment having an enclosed workplace a sign stating that smoking is not permitted.

09.12.23.04

.04 Designated Smoking Area.

A. An employer may permit smoking in a designated smoking area which meets the criteria in ¤B of this regulation.

B. Criteria. The designated smoking area:

(1) Shall have:

(a) Solid walls and ceiling and a closable door,

(b) Walls tightly joining floor and ceiling,

(c) Openings to adjacent enclosed workplaces limited to make-up air inlets, and

(d) A ventilation system that exhausts directly to the outdoors without recirculation to nonsmoking areas;

(2) May not be a location where an employee, other than a custodial or maintenance employee, is required to work;

(3) Shall be under negative pressure sufficient to prevent smoke migration to enclosed workplaces.

C. Cleaning. The employer shall ensure that cleaning and maintenance work in a designated smoking area is conducted while no one is smoking in the area.

D. Measurements. The employer shall periodically, but at least quarterly, inspect the ventilation of the smoking area to ensure that appropriate negative pressure is being maintained.

09.12.23.05

.05 Interpretation.

This chapter may not be construed to:

A. Require an employer to provide a designated smoking area as permitted by Regulation .04 of this chapter; or

B. Prevent an employer from prohibiting smoking in areas not covered by this chapter.

09.12.23

Administrative History

Effective date: August 1, 1994 (21:15 Md. R. 1304) Annotation: On July 22, 1994, judicial action stayed the enforcement of COMAR 09.12.23. H & G Restaurant, Inc., et al. v. William A. Fogle, et al., Case No. CG 2460, Circuit Court for Talbot County. On February 24, 1995, the Court of Appeals vacated the stay. William A. Fogle, et al. v. H & G Restaurant, Inc., et al., Case No. 69, September Term. At the time this supplement went to press, subject to additional legislative or judicial action, these regulations are scheduled to take effect on March 28, 1995.

State of MARYLAND

Maryland Code (Unannotated)

[The following is a section of the Maryland statutes which applies directly to the above regulation concerning smoking in workplaces. The bold print is of our insertion for your convenience.]

TITLE 2. DEPARTMENT OF LICENSING AND REGULATION

Section

2-101. Department established.

2-102. Secretary of Labor, Licensing, and Regulation.

2-103. Deputy secretary, consultants, and other staff.

2-104. General authority and duties of Secretary.

2-105. Regulations.

2-106. Licensing Testing Fund.

2-107. Counsel to Department.

2-108. Units in Department.

2-109. Advisory units.

2-110. Same - Language requirements; interpreters.

2-105. Regulations.

(a) In general.- The Secretary may adopt regulations for the Office of the Secretary.
(b) Regulations of units - Submission for review.- Before a unit in the Department publishes a proposed regulation under ¤ 10-112 of the State Government Article, the unit shall submit the proposed regulation to the Secretary.
(c) Same - Action by Secretary.-
(1) Except as provided in subsection (d) of this section, the Secretary may approve any proposed regulation.
(2) Within 30 days after submission of a proposed regulation on a regulatory, supervisory, quasi-judicial, disciplinary, or enforcement function of a unit, the Secretary may disapprove the proposed regulation but only if the Secretary finds that it:
(i) would discourage competition within a regulated occupation or profession; (ii) would unfairly restrict entry of applicants into a regulated occupation or profession; or
(iii) otherwise is contrary to the public interest.
(3) The Secretary may disapprove or revise any other proposed regulation.

(d) Permissible locations.-
(1) (i) Notwithstanding any regulations adopted by the Secretary under this section, the smoking of tobacco products is permitted in any of the following locations unless restricted as authorized under paragraph (3) of this subsection:
1. any portion of a private residence which is not open to the public for business purposes; 2. any establishment that: A. is not a restaurant or hotel as defined in Article 2B, ¤ 1-102 of the Code; B. possesses an alcoholic beverages license issued under Article 2B of the Code that allows consumption of alcoholic beverages on the premises of the establishment; and
C. is generally recognized as a bar or tavern;
3. a bar in a hotel or motel;
4. a club as defined in Article 2B, ¤ 1-102 of the Code that possesses an alcoholic
beverages license issued under Article 2B of the Code and that allows
consumption of alcoholic beverages on the premises of the club;
5. in the case of a restaurant as defined in Article 2B, ¤ 1-102 of the Code:
A. if the restaurant does not possess an alcoholic beverages license issued under
Article 2B of the Code, a separate enclosed room not to exceed 40% of the total
area of the restaurant; or
B. if the restaurant possesses an alcoholic beverages license issued under Article
2B of the Code, a bar or bar area, a separate enclosed room not exceeding 40% of
the restaurant, or a combination of a bar or bar area and a separate enclosed room
not exceeding 40% of the total area of the restaurant including the bar or bar area;
6. up to 40% of the sleeping rooms in a hotel or motel;
7. a separate enclosed room of an establishment other than an establishment
specified in items 1 through 6 of this subparagraph that possesses an alcoholic
beverages license issued under Article 2B of the Code that allows consumption of
alcoholic beverages on the premises of the establishment; or
8. up to 40% of the premises of a fraternal, religious, patriotic, or charitable
organization or corporation or fire company or rescue squad that is subject to the
authority of the Secretary during an event that the organization or corporation
holds on its own property and which is open to the public.
(ii) A separate enclosed room in which smoking is permitted under subparagraph
(i) of this paragraph is not required to have a specially modified ventilation system
for the room.
(2) For the purposes of paragraph (1)(i)5B of this subsection, "bar or bar area"
means an area within a restaurant that is devoted to the serving of alcoholic
beverages for consumption by guests on the premises and in which the serving of
food is incidental to the consumption of the alcoholic beverages, and the
immediately adjacent seating area.
(3) Notwithstanding the provisions of this subsection, a proprietor of an
establishment described in paragraph (1) of this subsection may restrict or
prohibit smoking on the premises of the establishment.

[An. Code 1957, art. 41, ¤ 8-104; 1992, ch. 4, ¤ 2; 1995, ch. 5.]

SYNOPSIS OF MARYLAND LAWS ON SMOKING IN ENCLOSED WORKPLACES: PREPARED BY THE SMOKE-FREE MARYLAND COALITION

Smoking in Enclosed Workplaces

It is illegal to smoke in most indoor workplaces unless confined to an enclosed and separately ventilated smoking room. Such a designated smoking room may not be a location where an employee, other than a custodial or maintenance employee, is required to work. Also, no one is permitted to smoke in a designated smoking room while cleaning and maintenance work is conducted.

There are exceptions to this rule. Bars and clubs are permitted to allow smoking unless further restricted by local law. The following other restrictions/exceptions apply:

Restaurants without a liquor license [see (d) (1) (i) (5) (A)]

[Smoking is permitted in] a separate enclosed room not to exceed 40% of the total area of the restaurant. Note: the separate enclosed room in this case does not have to be separately ventilated.

Restaurants with a liquor license [see (d) (1) (i) (5) (B)]

[Smoking is permitted in] a bar or bar area, a separate enclosed room not exceeding 40% of the restaurant, or a combination of a bar or bar area and a separate enclosed room not exceeding 40% of the total area of the restaurant including the bar or bar area; [the bar/bar area is considered to be the bar and first row of immediately adjacent tables or booths next to the bar, see (c) (1) (ii) for further definition of a bar/bar area] Note: the separate enclosed room in this case does not have to be separately ventilated.

Hotels & Motels [see (d) (1) (i) (6)]

[Smoking is permitted in] up to 40% of the sleeping rooms in a hotel or motel.

Establishments with a liquor license for on-site consumption [see (d) (1) (i) (7)]

[Smoking is permitted in] a separate enclosed room of an establishment that has a liquor license which allows consumption of alcoholic beverages on the premises of the establishment. [e.g., pool rooms, bowling alleys, etc.] Note: the separate enclosed room in this case does not have to be separately ventilated.

Other [see (d) (1) (i) (8)]

[Smoking is permitted in] up to 40% of the premises of a fraternal, religious, patriotic, or charitable organization or corporation or fire company or rescue squad (subject to occupational safety and health laws) during an event which is open to the public and held on its own property.

Who is covered by the Maryland Occupational Safety and Health (MOSH) Act?

The Act covers every Maryland employer in a business, trade, commercial or industrial activity, who has one or more employees, including State and local governments. The Act does not affect workplaces covered under certain other laws such as the Atomic Energy Act, the Federal Mine Safety and Health Act, and the Longshoremen's and Harbor Workers' Compensation Act. The MOSH Act does not apply to working conditions of employees of the federal government or any agency or instrumentality of a federal government agency. These workers are covered under the Federal OSHA program.

Who enforces the law and how do I file a complaint if I notice a violation?

Smoke Free Maryland can help any member of the public or an employee file a written complaint about a hazard to workers. Call the Coalition at (410) 539-0872 Ext 307 or (800) 492-1056 Ext 307 if you would like assistance or send an email to: office@smokefreemd.org.

To download a copy of the complaint form, go to: http://www.dllr.state.md.us/forms/complaintform.doc

If you live in Howard County or Talbot County, the laws protecting employees and the public from secondhand smoke are stronger than the State law. In Howard County, smoking in restaurants is only allowed in an enclosed and separately ventilated bar room. In Talbot County, smoking in restaurants is only allowed at the bar and first row of immediately adjacent tables or booths next to the bar. In both counties, if the restaurant does not sell alcoholic beverages, smoking is prohibited. On January 1, 2002, smoking will be prohibited in all bars and restaurants located in Montgomery County. To learn more about this landmark law, go to: http://www.co.mo.md.us/council/news99/0302smbn.html.

Call the Howard County Police Department or Talbot County Manager's Office for more information.