The reach of the “Clean Indoor Air Act” (“CIAA”) of 2008 is limited like the name implies. The Pennsylvania Labor Relations Board (“PLRB”) reaffirmed this conclusion on May 19, 2009, ruling in Association of Pennsylvania State College and University Faculties v. Pennsylvania State System of Higher Education (APSCUF v. PASSHE) that government and other public sector employers may not ban smoking in outdoor areas without their unions’ consent.

The CIAA, which took effect on September 11, 2008, prohibits individuals from smoking in “public places.” Section 2 of the CIAA defines a “public place” as “an enclosed area which serves as a workplace, commercial establishment or an area where the public is invited or permitted.” Additionally, a “workplace” is further defined as an “indoor area serving as a place of employment, occupation, business, trade, craft, professional or volunteer activity.” This new law is broad reaching in its effect and applies to: schools, restaurants and bars, healthcare facilities, vehicles used for mass transit, mass transportation stations, private and public child or adult daycare facilities, sports or recreational facilities, and theaters or performance establishments.

The PLRB was recently forced to examine the CIAA in APSCUF v. PASSHE. The dispute arose when the Pennsylvania State System of Higher Education (“PASSHE”) sought to ban smoking on the entire campus of each of the fourteen universities in the state system claiming that the CIAA prohibited it from allowing anyone to smoke anywhere on its campuses. The faculty union (“APSCUF”) challenged this unilateral change in policy claiming that it constituted unfair practices under Section 1201(a)(1) and (5) of the Public Employee Relations Act (“PERA”).

Since PERA prevents the agreement to and implementation of any term which would be inconsistent with any statutory directive, the PLRB recognized that PASSHE would be allowed to ban smoking without the union’s consent if permitting smoking was a violation of the CIAA. The PLRB, however, rejected PASSHE’s various arguments and held that the unilateral outdoor smoking ban was impermissible since the CIAA does not prohibit smoking in non-enclosed, outdoor areas.

The PLRB rejected PASSHE’s initial claim that Section 2 of the CIAA created three separate and distinct “public places”: (1) an “enclosed area which serves as a place of work”; (2) a “commercial establishment”; and (3) “an area where the public is invited or permitted.” Here the PLRB noted that the limiting predicate language that public places are “enclosed” could not be ignored, especially when considering the prominence of the term “enclosed” in the preamble of the statute.

The PLRB also rejected the assertion that the definition of “public place” cannot be limited to enclosed areas because the Legislature included “[a] sports or recreational facility, theater or performance establishment.” Here the PLRB determined that such partially open recreational areas are “enclosed” given the confined nature of seating arrangements, and found further opposition to the claim that CIAA prohibited smoking in outdoor school facilities since the General Assembly did not separately enumerate those areas for inclusion in the definition of “public place.”

Additionally, PASSHE argued that notwithstanding the predicate language that a public place be an enclosed area, Section 2 of the CIAA provided an alternative definition of “public place” as “a facility which provides education, food or health care related services.” The PLRB rejected this attempt to define “facility” using the broader definition found in PASSHE’s enabling legislation which would have included all state-owned university property. Instead, the PLRB found that the use of outside legislation to define the terms of the CIAA was inconsistent with the express language of Section 2 of the CIAA. The PLRB also examined the legislative history of the CIAA and found support for the conclusion that non-enclosed, outdoor spaces did not fall under the purview of the statute.

Since the outdoor areas were not covered by the CIAA, the PLRB held that PASSHE failed to meet its obligation to bargain with APSCUF before banning smoking on all of the outdoor areas on the state campuses. As a result, the PLRB ordered PASSHE to rescind its unilateral smoking policy change and to reinstate the past practice of permitting bargaining unit employees to smoke on campus while outdoors. The PLRB also noted that any future changes in policy would be subject to the traditional bargaining process guaranteed by the Public Employee Relations Act.

The PLRB decision has not significantly altered the CIAA; rather it indicates the PLRB’s willingness to adhere to the unambiguous definitional section of the legislation. It has also not prohibited government and public sector employers from banning smoking since these employers may still forbid smoking as long as it is bargained for under the Public Employee Relations Act. The PLRB has merely reaffirmed the scope of the CIAA, which is truly a regulation of “enclosed” public places.

If you have any questions about the Clean Indoor Air Act or implementing a no smoking policy at your workplace, please contact either Kathleen D. Bruder at kbruder@rhoads-sinon.com (717) 237-6731 or Cory A. Iannacone at ciannacone@rhoads-sinon.com (717) 237-6778, both of whom work in Rhoads & Sinon LLP’s Employment and Labor Law Department and represent public and private employers.