Smoking in the Workplace: Still a Burning Issue
by Barbara Kate RepaCopyright © 1996 Nolo Press
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Nolo Press. For more information or to order this book, Your Rights in the Workplace, visit Nolo's site at http://www.nolo.com.
The main federal law covering threats to workplace safety is the Occupational Safety and Health Act of 1970 (OSHA). OSHA requires employers to provide a workplace that is free of dangers that could physically harm employees.
OSHA rules apply to tobacco smoke only in rare and extreme circumstances, such as when contaminants created by a manufacturing process combine with tobacco smoke to create a dangerous workplace air supply that fails OSHA standards. Workplace air quality standards and measurement techniques are so technical that typically only OSHA agents or consultants who specialize in environmental testing are able to determine when the air quality falls below allowable limits.
But the torturous effects of tobacco smoke on human health have been clearly established and even certified by the government. A recent report by the Environmental Protection Agency, for example, estimated that secondhand tobacco smoke kills about 3,700 Americans per year. Many other estimates put the number at several times that amount. So people who smoke cigarettes, cigars or pipes at work increasingly find themselves to be an unwelcome minority--and many employers already take actions to control when and where smoking is allowed.
For example, a recent survey by Industry Week magazine found that nearly three-fourths of the 6,000 companies questioned either prohibited smoking in the workplace or restricted it to designated areas that nonsmokers can avoid. About 15% of the companies did not have a nonsmoking policy, but were considering adopting one.
Although no federal law directly controls smoking at work, a majority of states protect workers against unwanted smoke in the workplace. In addition, hundreds of city and county ordinances restrict smoking in the workplace, but only a few, including San Francisco, ban it outright. In contrast, about half the states make it illegal to discriminate against employees or potential employees because they smoke during nonworking hours.
So the ongoing legal battle in most workplaces boils down to a question of what is more important: one person's right to preserve health by avoiding co-workers' tobacco smoke, or another's unfettered right to smoke.
Protections for Nonsmokers
Because of the potentially higher costs of healthcare insurance, absenteeism, unemployment insurance and workers' compensation insurance associated with employees who smoke, some companies now refuse to hire anyone who admits to being a smoker on a job application or in pre-hiring interviews.The sentiment against smoking in the workplace has grown so strong that many companies now increase their attractiveness to job seekers by mentioning in their Help Wanted advertising that they maintain a smoke-free workplace.
Except in the states that forbid work-related discrimination against smokers and the states where it is illegal for employers to discriminate against employees on the basis of any legal activities outside of work, there is nothing to prevent employers from establishing a policy of hiring and employing only non-smokers.
State Legal Protections
While most states now protect workers from unwanted smoke on the job, they follow different approaches. In several states--including California, Connecticut, New Jersey, Rhode Island and Vermont--the laws limiting smoking are aimed specifically at workplaces. A large number of other states have smoking control laws that apply to everyone in public places and specified private places. In these states, nonsmoking employees are protected only if they happen to work in a place that is specifically covered by the statute. A few state laws are all-encompassing--limiting or banning smoking in both public places and workplaces.
Where smoking is limited, some states prohibit it except in a designated area within the workplace. Other states take the opposite approach, requiring employers to set aside pristine areas for the nonsmokers in the work crowd.
There are also common exceptions written into anti-smoking laws. Often, their protections do not apply to:- places where private social functions are typically held, such as rented banquet rooms in hotels; presumably, even the most sensitive nonsmokers must brave the smoke when they frequent these places
- private offices occupied exclusively by smokers
- inmates at correctional facilities and hospital patients, who usually must comply with the rules of the institution, and
- employers who can show that it would be financially or physically unreasonable to comply with the legal limitations.
The ADA: A Long Shot
Some workers who are irked and injured by smoke on the job have sued for their injuries under the Americans With Disabilities Act, which prohibits discrimination against people with disabilities. You are entitled to protection under this law only if you can prove that your ability to breathe is severely limited by tobacco smoke, making you physically disabled.Taking Action
If your health problems are severely aggravated by co-workers' smoking, there are a number of steps you can take.
- Ask your employer for an accommodation. Successful accommodations to smoke-sensitive workers have included installing additional ventilation systems, restricting smoking areas to outside or special rooms, and segregating smokers and nonsmokers.
- Check local and state laws. A growing number of local and state laws prohibit smoking in the workplace. Most of them also set out specific procedures for pursuing complaints. If you are unable to locate local legal prohibitions on smoking, check with a smokers' rights group.
- Consider filing a federal complaint. While OSHA is handling an increasing number of smoking injuries, most claims for injuries caused by second-hand smoke in the workplace are pressed and processed under the Americans with Disabilities Act. In the strongest complaints, workers were able to prove that smoke sensitivity rendered them handicapped in that they were unable to perform a major life activity: breathing freely.
- Consider income replacement programs. If you are unable to work out a plan to resolve a serious problem with workplace smoke, you may be forced to leave the workplace. But you may qualify for workers' compensation or unemployment insurance benefits.
Protection for Smokers
Some states protect both smokers and nonsmokers by insisting that employers provide a smoke-free environment for nonsmokers and by prohibiting discrimination against an employee who smokes -- either while off the job or at limited places and times in keeping with a worksite smoking policy.Protection for smokers may be couched in laws that prohibit discrimination against employees who use "lawful products" outside the workplace before or after workhours. Wisconsin law goes an extra step and forbids employers from discriminating against both workers who use and workers who do not use lawful products.
Several of the state laws that prohibit discrimination against smoking employees do not apply if not smoking is truly a part and parcel of the job. The exception is written into the laws in a number of states -- including Minnesota, Montana, North Carolina, New Jersey, New York, Oregon, South Dakota, Wisconsin and Wyoming. In these states it is likely, for example, that a worker in the front office of the American Cancer Society -- a group outspoken in its disdain of tobacco -- could be fired for lighting up on the job.
And even in those states that offer some protection to smokers -- such as Minnesota, Montana, South Dakota, Wisconsin and Wyoming -- employers are free to charge smokers higher health insurance premiums than nonsmoking employees must pay.
