Employees are entitled to a smoke-free workplace in restaurants and casinos.....the entrepreneurial freedom exception to the workplace ban does not apply.
An employee worked as head of roulette tables in a casino, which did not have a separate bar area. People could smoke anywhere in the casino. The employee sued his employer because he was legally entitled to a smoke free workplace.
The court held under sec. 618 (1) German Civil Code (“BGB”) that rooms, devices or equipment must be set up by the employer in such a way that the employee is protected from danger to life and health as far as the nature of his business allows. The employer must implement an overall ban or a restricted smoking ban for particular areas of the workplace pursuant to sec. 5 (1) 2 Regulation for Places of Employment (“ArbStättV”).
Although ‘entrepreneurial freedom’ is protected by sec. 5 (2) ArbStättV, the court considered that this entrepreneurial freedom was restricted by sec. 2 (1) no. 8 Protection of Non-Smokers Act (“NRSG”), which prohibits smoking at res-taurants. The court determined that the casino was a restaurant, on the grounds that it had a bar.
The decision of the court in this instance, however, seems to be inconsistent with the following decision:
On 30 July 2008, the Federal Constitutional Court ruled that the smoking ban in so-called ‘one-room restaurants’ un-der the NRSG is incompatible with sec. 12 (1) GG and is therefore unconstitutional. Despite this, the NRSG is not invalid, but a reforming law must be enacted on 31 December 2009. Until that date at least, sec. 2 (1) no. 8 NRSG applies to safeguard individuals in restaurants against the dangers of passive smoking.
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This article was produced by, and re-produced with kind permission of, our correspondent firm in Germany, Keller Menz Rechtsanwälte. www.keller-menz.de
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