This information is intended for general information purposes only and is not meant as legal advice. This information should not take the place of a thorough review of pertinent statutes, consultation with legal counsel, or other specific guidance on the subject.

Smoking Laws & the Municipal Workplace
by Antoinette Mancusi, Technical Advisor
Maine Municipal Association
updated 8/11/03

Municipalities in the state of Maine are subject to two sets of smoking laws. One set applies to “public places” (22 M.R.S.A. § 1541 et seq.) and the other to “places of employment” (22 M.R.S.A. § 1580-A).

Public Places. With certain exceptions or limitations set out in Section 1542(2) and one in Title 28-A relating to pool halls (enacted in 2000), smoking is prohibited in all “enclosed areas” of “public places” during the time they are open to the public.

A “public place” is broadly defined as “any place not open to the sky into which the public is invited or allowed,” and includes not only buildings but also mobile environments such as buses. Designated smoking areas however, may be located where no sales, services or other commercial or public activities are conducted. In the event a designated smoking area has been established, it must conform to § 1542’s mandates and a sign designating “smoking” must be posted. Municipalities devising smoking policies which will provide for “designated smoking areas” should review § 1542 carefully, as it sets out almost a dozen circumstances or limitations whereby an enclosed area of a public place is not considered open to the public.

Signs must be posted conspicuously in buildings regulated by the smoking laws. Designated smoking areas must have signs that read “Smoking Permitted” with letters at least one inch in height, and places where smoking is prohibited must have signs that read “No Smoking” with letters also at least one inch in height or with the international symbol for no smoking. Please refer to the posters provided with this material, which can be downloaded, from our web site.

Places of Employment. Every employer must establish, or negotiate through collective bargaining, a written policy that prohibits smoking by employees in all business facilities except in designated smoking areas (22 M.R.S.A. § 1580-A¾Workplace Smoking Act of 1985). Refer to the sample policies provided with this article but please be sure to alter the contents in order to meet your municipality’s needs. A “business facility” is defined as “a structurally enclosed location or portion thereof at which employees perform services for their employer.” The policy may prohibit smoking throughout the facility. For business facilities that are or include public places, the laws governing smoking in public places (see above) also apply.

Employers are responsible for implementing the policy, although the State Bureau of Health may assist in developing it. Failure of an employer to establish, post, or supervise the implementation of a policy is a civil violation for which a maximum fine of $100 can be imposed. The Bureau of Health is authorized to enforce the requirements. The employer must provide a copy of the policy to any employee requesting it.

The law does not apply to business facilities that are also personal residences. In addition, unless different smoking policies have been mutually (and expressly) agreed to by the employer and all employees (Schlear v. Fiber Materials, Inc.(Me. 1990)), the smoking policy must prohibit smoking except in designated areas and may prohibit smoking throughout the business. However, it is important to note, “smoking agreements” will be of limited application in municipalities since any municipal agreement on point will be constrained by the “public places” requirements of 22 M.R.S.A. § 1541 et seq. Retaliation against an employee or an applicant who pursues any remedy available to enforce the requirements of Maine’s smoking laws is forbidden.

Developing Policies. Despite the fact that municipalities are limited with regard to the kind of “workplace smoking” policy they can develop (because they are generally “public places”), those seeking assistance in developing and implementing smoking policies and enforcing smoking laws should contact the Department of Human Services, Bureau of Health, Partnership for a Tobacco-Free Maine (287-4627). The Bureau makes available a “Good Work!¾Creating a Smoke-Free Workplace” kit that can provide further information (refer to the links provided with this material). Also, municipalities can contact the American Lung Association of Maine at 622-6394 (Augusta calling area), 1-800-499-5864, fax 626-9219.