Can businesses with no employees allow smoking in the workplace?

No, unless the business falls under one of the few remaining exemptions in California Labor Code 6404.5 (the smokefree workplace law). As of June 9, 2016, California’s smokefree workplace law prohibits smoking in the enclosed areas of an “owner-operated business.” An owner-operated business is a business in which the owner-operator is the only worker. These businesses have no employees, independent contractors, or volunteers.

Prior to June 9, 2016, the California Attorney General had concluded in a 2013 opinion that even if a business does not have its own employees, an enclosed “place of employment” must be smokefree if any employee is carrying on employment in that space. For example, an employee could be a janitor, maintenance worker, musical performer, caterer, etc.

In addition, a business is considered a place of employment even if it does not directly engage or hire outside employees to work there, so long as it allows onsite employees to perform their duties there. Delivery service employees or government inspectors, for instance, fall into this category. However, even with the Attorney General’s opinion in 2013, an exemption remained for owner-operated businesses that did not allow any employment to be carried on at the business. That exemption no longer exists due to California legislation adopted in 2016.

There are still exemptions in the state smokefree workplace law. As a result, smoking is permissible in the following places.

  • Private residences, except licensed family daycare homes
  • Cabs of motor trucks or truck tractors, only if nonsmoking employees are not present
  • Theatrical production sites, only if smoking is integral to the story
  • Medical research or treatment sites, only if smoking is part of research and treatment
  • Patient smoking areas in long-term health facilities
  • Retail or wholesale tobacco shops, which are business establishments that have the main purpose of selling tobacco products and smoking accessories
  • Private smokers’ lounges, which are enclosed areas in or attached to a retail or wholesale tobacco shop that are dedicated to the use of tobacco products

For more information about the different exemptions contained in California’s smokefree workplace act, see our resources, Tobacco Laws Affecting California and Tobacco Shops & Smokers’ Lounges: Understanding the Exceptions to California’s Smokefree Workplace Act