California Workplace Smoking Ban: Labor Code 6404.5 and Penalties

The California workplace smoking ban, set out in Labor Code 6404.5, prohibits smoking in every enclosed place of employment in the state, and it treats vapes and e-cigarettes the same as traditional cigarettes.¹ Both the person who lights up and the employer who allows it can be fined, and repeated violations trigger Cal/OSHA involvement with penalties in a much higher range.

Where the Ban Applies

An “enclosed space” is any area with walls and a ceiling inside a place of employment. The statute specifically names lobbies, waiting areas, elevators, stairwells, restrooms, and covered parking lots.¹ If employees perform work in the space, the space is covered.

Notably absent from the current statute is any exemption for indoor breakrooms with dedicated exhaust systems. Earlier versions allowed them; the operative text no longer does.

Vaping and E-Cigarettes Are Included

Labor Code 6404.5 uses the definition of “smoking” from the Business and Professions Code, which reaches inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, or other tobacco or plant product intended for inhalation. The same definition covers electronic devices that create an aerosol or vapor, so vaping falls squarely within the ban.²

“Tobacco product” is defined just as broadly, reaching any product containing, made from, or derived from tobacco or nicotine that is intended for human consumption, including electronic delivery devices. The only carve-out is for products the FDA has approved as cessation aids or for other therapeutic purposes, and only when they are marketed and sold solely for that approved use.²

The Narrow List of Exempt Locations

Subdivision (e) of the statute, as amended by SB 626 effective January 1, 2024, exempts six categories of locations from the definition of a “place of employment”:³

Retail or wholesale tobacco shops whose main purpose is selling tobacco products, and private smokers’ lounges attached to or inside such shops.
The cab of a motortruck or truck tractor, but only when no nonsmoking employees are present.
Theatrical production sites, only when smoking is an integral part of the story being performed.
Medical research or treatment sites, only when smoking is integral to the research or treatment.
Private residences, unless the home is licensed as a family day care, in which case smoking is prohibited during operating hours.
Patient smoking areas designated within long-term health care facilities.

Everything outside these six categories is covered. There is no exemption for indoor employee breakrooms, no exemption for private offices, and no exemption for after-hours workplaces.

What Employers Have to Do

Two duties matter most. First, signage: if smoking is prohibited throughout the building, a “No Smoking” sign must be posted at each entrance. If smoking is permitted in a designated exempt area, the sign must state that smoking is prohibited except in that area.¹

Second, when a customer, vendor, or other nonemployee smokes inside the workplace, the employer must ask that person to stop. The statute treats this as one of the reasonable steps that protect the employer from being found in knowing or intentional violation. Employers are never required to physically eject anyone, and the duty to ask does not apply where doing so would create a risk of physical harm to the employer or any employee.³

Fines for Violations

Violations are infractions, enforced by local law enforcement and local health departments as designated by each local governing body.¹ Fines apply to violations of subdivision (c), which prohibits both employers from knowingly permitting smoking and individuals from smoking in the workplace. So the smoker can be fined, and the employer who allowed it can be fined separately.

First violation: up to $100.
Second violation within one year: up to $200.
Third and subsequent violations within one year: up to $500 each.

When Cal/OSHA Gets Involved

Cal/OSHA does not respond to first-time complaints. Under the statute, the Division of Occupational Safety and Health only investigates after an employer has been found guilty of three violations within the previous year.¹ At that point the numbers change substantially. Cal/OSHA can issue citations of up to $7,000 for general or serious violations and up to $70,000 for violations classified as willful and serious.⁴

Local Rules Can Be Stricter

The state ban is a floor. Labor Code 6404.5 explicitly preserves local authority to regulate smoking in ways that go beyond its own requirements, and many California cities and counties have done exactly that.¹ Some local ordinances eliminate exemptions the state law still allows, including bans on smoking inside tobacco shops and private smokers’ lounges. Others reach outdoor areas like restaurant patios and public sidewalks near businesses.

If your workplace is in a jurisdiction with its own smoking ordinance, the stricter rule controls. Check the city and county rules before relying on any of the six state exemptions.

Reporting a Violation Without Losing Your Job

Employees who report smoking violations to their employer, Cal/OSHA, or another government agency with workplace safety responsibility are protected from retaliation under Labor Code 6310. An employer cannot fire, demote, suspend, or otherwise discriminate against a worker for making a good-faith complaint about unsafe conditions, and violations of the smoking ban qualify.⁵

An employee who is retaliated against is entitled to reinstatement and reimbursement of lost wages and benefits. An employer who willfully refuses to rehire or restore a worker determined eligible for reinstatement through arbitration or a hearing commits a misdemeanor. The protection also extends to family members, so an employer cannot punish a complainant indirectly by targeting a relative on the payroll.⁵

Federal whistleblower protection is a second layer. Under Section 11(c) of the federal Occupational Safety and Health Act, an employee who suffers retaliation for raising occupational health concerns can file a complaint with federal OSHA within 30 days of the adverse action.⁶

Civil Claims Beyond the Fines

Administrative fines are not the only exposure. An employee who develops health problems from secondhand smoke at work has additional legal paths.

Workers’ compensation is the most direct. California’s system does not require proof of employer negligence, so an employee who can show a workplace condition caused or contributed to an illness can recover medical expenses and lost wages. Claims have succeeded historically for asthmatic and allergic reactions, and for serious conditions tied to long-term heavy exposure.

Employees with respiratory conditions may also have rights under the Fair Employment and Housing Act. FEHA requires employers with five or more employees to provide reasonable accommodations for a physical disability, which can include ensuring a smoke-free environment.⁷ California’s threshold is broader than the federal ADA’s: FEHA asks only whether an impairment “limits” a major life activity, while federal law requires that it “substantially limits” one. An employer who ignores an accommodation request from a smoke-sensitive worker faces disability discrimination liability on top of any smoking ban penalty.

If Your Workplace Is a Federal Building

Federal facilities in California follow a different rulebook. Executive Order 13058 bans smoking in all interior space owned, rented, or leased by the executive branch, and in outdoor areas near air intake ducts. The narrow exceptions are designated smoking areas that are fully enclosed, exhausted directly outside, and maintained under negative pressure, along with residential accommodations and buildings leased entirely to non-federal tenants.⁸

Federal OSHA does not have a standalone regulation banning workplace smoking and, as a policy matter, does not apply the General Duty Clause to environmental tobacco smoke.⁹ For private-sector workplaces in California, that means state law is doing the work.

1
California Legislative Information. California Labor Code 6404.5 – Smoking in the Workplace
2
California Legislative Information. California Code, Business and Professions Code BPC 22950.5
3
California Legislative Information. California Labor Code 6404.5
4
California Department of Industrial Relations. California Workplace Smoking Restrictions
5
California Legislative Information. California Labor Code 6310
6
Occupational Safety and Health Administration. Whistleblower Protection Program
7
California Civil Rights Department. Reasonable Accommodation
8
eCFR. 41 CFR 102-74.315 – Smoking Policy for Interior Space in Federal Facilities
9
Occupational Safety and Health Administration. Reiteration of Existing OSHA Policy on Indoor Air Quality – Environmental Tobacco Smoke