Where there is fire, there is smoke: an analysis of issues involving smokers and those exposed to smoke in the workplace.

• Author: Fleming, Joseph Z.

Many social and political issues in America are litigated in the work place; and now employers should add smoking to the litigation litany which should be considered in making workplace decisions. Where there is litigation over firing employees in the near future, smoke maybe one of the factors to be evaluated.

The concept of anecdotal anarchy is well chronicled in publications showing that as an increasing number of interest groups have used the traditional model of labor law to push for additional status, recognition, protection, and means of promulgating rights which enable them to litigate workplace decisions, there is an inconsistency between the various laws which have to be administered in the workplace. Legitimate organizations which have legitimate concerns can often individually justify legislation to protect their intentions; but, taken as a whole, the results can create a chaotic situation.[1] Walter Olson's book, The Excuse Factory, discussed the problems in the workplace. As noted by Tim W. Ferguson's review of Olson's book:[2]

If you're Anheuser-Busch and fire a black man after 215 unexcused absences over two years, be prepared to lose a suit over race discrimination. If you're Kodak and a manager tells a salesman he's "not keeping up with the times," get out your checkbook for a million-dollar age-bias verdict. And if you're Duxbury, Mass., and have a firefighter escape a wife-beating rap claiming mental illness and then emerge from the nuthouse, get ready to be told that you must rehire him with back pay and an accommodation for his "disability." (And then, of course, appeal.)

According to the book review, "Mr. Olson argues that these and many more outrages are the function of a mercenary `act of group uplift,' which seeks ever new ways to `shake one's boss by the ankles until coins roll out.'" The book review suggests that The Excuse Factory is "heavier on anecdotes than statistics"; but, it is noted that federal bias actions, according to accounts, had a 20-fold increase from 1970 to 1989. Olson argues that there is a "vital pivot of identity politics" since group activity is involved based on membership in a"protected class--racial, sexual, physical, lingual, chronological."

Olson's book is a conservative criticism; but it is not always the conservative force which creates the conservative impact. As an illustration, within a few days after President Clinton admitted his incorrect conduct with Monica Lewinsky, a New York Times advertisement for a book suggested a new factor to be considered in the workplace, "The Clinton Syndrome":[3]

Now that we know what the President did, the question people ask is: Why? Why would Bill Clinton risk engaging in illicit sex within the White House? Why would someone so intelligent be so out of control? Why would such a smart man behave so recklessly?

In this provocative new book, Dr. Jerome Levin, a leading addictions expert at the New School for Social Research, digs deep into Bill Clinton's past and discovers a pattern of tawdry and destructive relationships consistent with classic sexual addiction. (Emphasis added.)

The problems caused by the addict in the workplace include the double victim issue. The so-called "Clinton syndrome" addiction is a harbinger of the smoking problem, in that it is an "addiction" that creates a unique workplace environmental irony by working both ways. The victim of the "Clinton syndrome" addict may, arguably, sue the addict and the employer in the workplace, under a variety of different legal theories; and, the addict, if punished, may, arguably, assert a disability and seek special protection too. Smoking in the workplace may create the same dilemma; the nonsmoker may maintain that smoking creates a safety-in-the-workplace problem or assert some protected status (such as a disability that precludes exposure to smoke); and the smoker may assert a number of legal theories that could entitle the smoker to special protection, because of an alleged disability, such as addiction to nicotine or other asserted rights.[4]

Within the past few months, while the tobacco industry has been focusing attention on the lawsuits facing it,[5] the push for new tobacco legislation has stalled.[6] It has become apparent that Congress will not address directly the myriad of issues raised by tobacco use. In the absence of legislative guidelines it is employers who will have to resolve the battle between those who smoke (maintaining that they are addicted and have various rights to smoke in the workplace) and those who do not smoke (maintaining that they have a right to a smoke-free workplace).

Two recent decisions have invalidated the FDA's attempt to regulate the tobacco industry and invalidated the EPA's attempt to regulate secondary smoke.

In the first case, Brown & Williamson Tobacco Corporation, et al. v. Food & Drug Administration, et al., 1998 U.S. App. LEXIS 18821 (4th Cir. August 14, 1998) at 19, involving invalidation of the FDA's rules, the Fourth Circuit, in an important decision, recognized that the FDA found that "tobacco products are `dangerous,' `unsafe,' and the cause of `great pain and suffering from illness such as cancer, respiratory illnesses, and heart disease.' 61 Fed. Reg. at 44,412. In addition, the FDA determined that over 400,000 people die each year from tobacco use. 61 Fed. Reg. at 44,412."

The Fourth Circuit found that, despite the foregoing, the FDA did not plan to eliminate tobacco but, rather, proposed to regulate it because of the conclusion that withdrawal of tobacco from the market would pose significant health risks to addicted adults, outweighing the risks of leaving tobacco products on the market.[7] The court concluded that the FDA's approach was not permitted by law. The court, therefore, invalidated the FDA's rulemaking, which involved assessing risks (or splitting the difference), finding that the FDA's test was improper.[8]

The court reasoned that in view of the FDA's characterization of tobacco products as unsafe, the FDA regulations were improper and noted that there were other inconsistencies which the FDA had tried to utilize. The court rejected the FDA's characterization of the practice being unsafe followed by an inconsistent attempt to allow the product to be utilized, since there could not be reasonable assurances of safety for a product found to be inherently unsafe and dangerous:

However, based on the FDA's characterization of tobacco products as unsafe, it is impossible to create regulations which will provide a reasonable assurance of safety. Thus, the FDA cannot comply with the terms of the very statutory provision it has chosen as its basis for regulation. In addition to the fundamental conflicts described...