What Employers Need to Know About Smoking in the Workplace
| Publication year | 1992 |
| Pages | 421 |
| Citation | Vol. 21 No. 3 Pg. 421 |
1992, March, Pg. 421. What Employers Need to Know About Smoking in the Workplace
For health, financial and legal reasons, smoking in the workplace is under attack. Nonsmokers have been successful in obtaining relief from exposure to environmental tobacco smoke ("ETS") in both the courts and legislatures. As medical knowledge regarding the adverse health effects of ETS on nonsmokers has become more conclusive and expansive, employers have experienced increased pressure from a variety of sources to control or eliminate ETS. On the other hand, smokers have proclaimed their "right" to smoke both on and off the job, and many employers are understandably reluctant to alienate their employees who smoke. Employers who attempt to accommodate these competing interests find themselves walking a thin line.
This article explores the hazards of ETS, the employer's legal obligation to control ETS and the employer's rights and restrictions in controlling ETS.
Current medical literature reports that ETS presents a health risk to nonsmoking employees. In 1986, the U.S. Surgeon General concluded that involuntary smoking is a cause of lung cancer.(fn1) The same conclusion was reached that year by the National Research Council ("NRC") and the following year by the International Agency for Research on Cancer.
In 1990, the Environmental Protection Agency ("EPA") released two draft reports entitled: "Health Effects of Passive Smoking: Assessment of Lung Cancer in Adults and Respiratory Disorders in Children" and "Environmental Tobacco Smoke: A Guide to Workplace Smoking Policies." These draft reports extend the analysis of the 1986 NRC and Surgeon General reports to include subsequent epidemiologic evidence. They conclude that: (1) passive smoking is causally associated with lung cancer in adults; (2) exposure of young children to ETS is associated with increased prevalence of acute lower-respiratory tract infections, respiratory symptoms of irritation, middle ear effusions and reduced lung function; and (3) approximately 3,800 lung cancer deaths per year among nonsmokers are attributable to ETS. The EPA "concludes that environmental tobacco smoke is a Group A (known human) carcinogen."(fn2)
In June 1991, the National Institute for Occupational Safety and Health ("NIOSH") summarized the current medical studies regarding ETS and stated that it considers ETS to be a potential occupational carcinogen in conformance with the OSHA classification system.(fn3) NIOSH recommends that exposures to ETS be reduced to the lowest feasible concentration and that all available preventive measures be used to minimize occupational exposure to ETS.(fn4)
A May 1991 draft report sponsored by the EPA concludes that the health effects of ETS on the heart may be of even greater concern than its cancer-causing effects on the lungs. The report attributes 53,000 yearly nonsmoker heart-related deaths to ETS. Nicotine causes hardening of the arteries.(fn5)
The current medical literature strongly suggests that ETS is a carcinogen and may cause heart disease. The major shortcoming of the current medical literature is the absence of a correlation between the amount of exposure to ETS and the likelihood of obtaining cancer or heart disease. Agencies such as the EPA and NIOSH take the position that any exposure to a known human carcinogen presents a health risk.
Employees who smoke cost their employers money. These costs arise from absenteeism, impaired health, decreased productivity, medical care benefits, maintenance and repair of the workplace, disability
An employer is under a legal obligation to protect nonsmokers from ETS. This obligation emanates from such diverse laws as those involving handicaps, tort principles, unemployment and disability benefits and contracts, federal and state statutes and local ordinances.(fn7) Although the Occupational Safety and Health Administration ("OSHA") has not yet come to the aid of nonsmoking employees, its inactivity is not likely to last forever. On the other hand, as noted below, employees do not have a constitutional right to a smoke-free environment.
Nonsmoking employees who are hypersensitive or allergic to ETS have been successful in obtaining relief from exposure to ETS under laws which protect the handicapped. Their argument typically is as follows: (1) the employer is subject to the handicap law; (2) the employee has a medical condition which makes him or her hypersensitive or allergic to ETS; (3) the employee's medical condition limits at least one major life activity (such as a capacity to work in an environment which is not completely smoke free or an ability to breathe); and (4) the employer has failed to make reasonable accommodations to provide the employee with a smoke-free environment. Employees who have been able to prove these elements have obtained relief.(fn8)
Employers have successfully defended against these claims by showing the handicapped law did not apply to them,(fn9) the plaintiff was not handicapped(fn10) or reasonable accommodations had been provided.(fn11) The handicap laws provide protection to the hypersensitive employee. However, at least one court interpreting state law has held that handicap laws do not apply to the employee who is simply irritated by ETS.(fn12)
Employers in Colorado may be subject to one or more of three state and federal handicap discrimination laws. First, CRS § 24--34--402(1)(a) prohibits an "employer" (all state and private employers except religious organizations) from refusing to hire or discriminating against any otherwise qualified person because of a handicap. Second, the Rehabilitation Act of 1973 prohibits discrimination based on a handicap in any
and by any employer having a contract valued in excess of $2,500 with the federal government.(fn14) Third, the Americans with Disabilities Act of 1990 ("ADA") prohibits each "covered entity" (employer, employment agency, labor organization and joint labor-management committee) from discriminating against a qualified individual because of a disability. An ADA "employer" includes a person engaged in an industry affecting commerce who has fifteen or more employees.(fn15) The Rehabilitation Act of 1973 and the ADA have been amended by the Civil Rights Act of 1991 to allow for compensatory and punitive damages, and a jury trial, where the covered entity commits "unlawful intentional discrimination," including failure to make reasonable accommodations.(fn16)program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service(fn13)
A Colorado employer is well advised, under these three handicap laws, to make reasonable accommodations for the nonsmoking employee who is hypersensitive or allergic to ETS, where the condition substantially impairs the employee's ability to function effectively in the workplace.
Nonsmoking employees have also been successful with actions based on the common law obligation of an employer to provide a reasonably safe workplace for employees. Their argument typically is as follows: (1) ETS presents a health hazard to the plaintiff; and (2) the employer has breached its duty to protect the plaintiff from this hazard. The seminal action under this doctrine is Shimp v. New Jersey Bell Tel. Co.,(fn17) wherein the court adjudged that ETS was toxic and deleterious to the health of nonsmokers and the allergic plaintiff. The court ordered the employer to provide safe working conditions by restricting smoking to the lunchroom. This injunctive relief, although founded on a tort theory, was held not to be precluded by the state workers' compensation act. Other courts, including the Supreme Court of Washington, have similarly acknowledged the employer's tort obligation to provide a reasonably safe workplace by controlling or eliminating ETS.(fn18)
However, not all courts have interpreted the employer's "duty" to require workplace accommodation of the hypersensitive employee. In 1983 decisions, two courts acknowledged that an employer has a duty to provide employees with a reasonably safe workplace, but interpreted this "duty" as meaning that the employer must accommodate the needs of the "typical" nonsmoking employee, but not necessarily the needs of the hypersensitive employee.(fn19)
This duty of the employer to provide a reasonably safe workplace has been adopted in Colorado.(fn20) Although the scope of the employer's "duty" to protect the hypersensitive employee is unsettled, an employer has a minimal duty to provide a reasonably safe workplace for the typical (nonhypersensitive) employee. The precautions which a reasonably prudent employer must take to protect the typical employee will depend on the health hazards which are or should be known. As evidence of the adverse medical effects of ETS becomes more conclusive and new medical consequences, such as heart disease, are suspected, increased medical awareness could increase the employer's obligation to take precautions to protect nonsmoking employees from ETS.
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