Sophie Fleurance

FRANKLIN

26, avenue Kléber – 75116 Paris

Email address: sfleurance@franklin-paris.com

The Law of January 10, 1991 called “the Evin Law” generally prohibits smoking in public places except in designated smoking areas.

 Ø      How does the smoking ban apply in the workplace?

The smoking ban applies in all enclosed and covered workplaces or premises available for use by the employees, such as lobby areas and reception areas, lunchrooms, conference and training rooms, rest rooms and areas, premises used for recreation, culture or sport, sanitary facilities…

 Open space offices and offices shared by two or more employees are also considered as premises for collective use where smoking is prohibited.

Ø      What are the employer’s obligations as regards workplace smoking?

First of all, the employer must seek to protect non-smokers.

In that respect, if the employer wishes to be granted variance from the prohibition on smoking in areas for use by all employees, he must draw up a space allocation map (“plan d’aménagement des espaces”) and, for example, create specifically designated smoking areas in the workplace.

Before being implemented, the space allocate map must be submitted to the occupational physician, the committee on occupational health, safety and working conditions (« CHSCT ») or, if there is none, to employee delegates. Such consultation must be renewed every two years.

Moreover, smoking areas must comply with the provisions of the French Code of public health and, in this respect, are subject to a number of requirements, in particular as regards ventilation.

Finally, the employer must post appropriate signs to indicate areas where smoking is banned as well as smoking areas.

The employer may face criminal liability (punished by the 7,500 euro fine for “fifth class” offences), if:

(1) smoking areas are not compliant with the provisions of the French Code of public health; and/or

(2) ventilation requirements are not met; and/or

(3) appropriate signs (indicating no-smoking and/or smoking areas) have not been posted. 

Ø      What can the employer do to enforce workplace smoking restrictions?

In a landmark decision dated June 29, 2005, the Social Chamber of the French Supreme Court held that “employers have an absolute obligation to ensure safety of their employees as concerns their protection from smoking in the workplace”. In the case then at hand, in response to the complaints of an employee who shared his office with smokers, the employer simply prohibited the other employees from smoking in her presence and posted no smoking signs in the collective office of the concerned employee.

The employer obviously failed to meet the statutory requirements since he did not draw-up a “space allocation plan”. However, the French Supreme Court did not stop there. Indeed, the Court held that not only was the employer required to comply with applicable smoking law, but he also had a duty to take all necessary measures to cause its employees to comply with it as well. 

Therefore, the employer shall use his disciplinary power if necessary and punish employees in breach of the applicable workplace smoking policy.

Ø      What are the risks incurred if employees complain from the lack of enforcement of workplace smoking laws?

In the aforesaid decision of June 29, 2005, the Social Chamber of the French Supreme Court held that an employee complaining from violations of smoking laws may consider his employment agreement terminated to the detriment of the employer, which has the same legal implications as a dismissal without a genuine and serious cause (licenciement sans cause réelle et sérieuse).

In that event, in addition to usual termination benefits (pay in lieu of notice, severance pay, pay in lieu of vacation) the employee is entitled to damages in an amount no less than six months’ salary, provided the company employs at least 11 employees and the said employees has worked there for at least two years.

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French courts’ increased severity in enforcing workplace smoking regulations is part of a wider action, since a bill has been submitted on November 2, 2005 to the National Assembly introducing a total ban on smoking in public places, including bars and restaurants as well as workplaces.