The Legal Rights of Nonsmokers in the Workplace

• Publication year: 1987
• Citation: Vol. 10 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 3SPRING 1987

The Legal Rights of Nonsmokers in the Workplace

Raymond L. Paolella(fn*)

I. Introduction

The Surgeon General first suggested that nonsmokers might be harmed by exposure to tobacco smoke in his 1972 report on the health consequences of smoking.(fn1) Since 1972, numerous studies have produced growing medical and scientific evidence showing that such harms are substantial.(fn2) Most recently, in December of 1986 the Surgeon General issued an unprecedented report stating unequivocally that the inhalation of smoke from other people's cigarettes causes lung cancer and other diseases in healthy nonsmokers.(fn3)

To protect nonsmokers from involuntary smoking, most states have enacted legislation that restricts smoking in public places.(fn4) However, nonsmokers are probably most vulnerable to serious harm from exposure to tobacco smoke in the workplace because they spend relatively large amounts of time at work. Only a handful of states has imposed effective restrictions on smoking in the workplace.(fn5)

When legislatures fail to address an important health issue such as this, people naturally turn to the courts for relief. Nonsmokers have had considerable success in obtaining judicial relief, and litigation by nonsmokers against their employers is likely to become increasingly common in the near future.

This article will examine the legal rights of nonsmokers based upon the common law right to a safe workplace, federal and state laws protecting handicapped persons, other tort theories, various federal and state statutory provisions, administrative regulations, and local ordinances. Although strong emphasis will be placed on the legal rights of nonsmokers in the workplace, the rights of nonsmokers in public places will also be discussed. The main focus is on Washington law; however, the common law and federal law theories discussed in this article should be viable in many other jurisdictions throughout the United States.(fn6)

II. The Harm from Involuntary Smoking

Regardless of which legal theory a nonsmoker may employ to assert his or her rights to smoke-free air, it is essential that the decision-making tribunal be presented with a comprehensive and persuasive factual record that clearly outlines the harmful effects of tobacco smoke on nonsmokers. An exhaustive and persuasive factual record will likely be the single most important factor in convincing a court to apply or expand a common law legal doctrine to protect nonsmokers. This was clearly demonstrated in Shimp v. New Jersey Bell Telephone Co.,(fn7) the landmark case which first invoked the well-settled common law right to a safe workplace for the benefit of a nonsmoking employee. Therefore, some of the most potent factual data on the harm from involuntary smoking will be reviewed.

A. Constituents of Tobacco Smoke

When a nonsmoker is present in a smoke-filled room, he or she is in fact smoking because normal inhalation exposes the nonsmoker to many of the same constituents of tobacco smoke that voluntary smokers experience.(fn8) Tobacco smoke is derived from two sources: sidestream smoke and mainstream smoke.(fn9) Sidestream smoke emerges directly from the end of the burning tobacco product; mainstream smoke is first inhaled by the smoker and then enters the environment.(fn10) Sidestream smoke contains higher concentrations of many known toxic and carcinogenic agents than mainstream smoke.(fn11)

Scientists have identified over 3,800 substances in tobacco smoke.(fn12) Upwards of 90% of cigarette smoke is composed largely of a dozen gases that are hazardous to health.(fn13) In addition, in each cubic centimeter of cigarette smoke, there are about one billion particles small enough to penetrate to the farthest recesses of the lung.(fn14) Nationally, cigarette smokers introduce an estimated 2.25 million metric tons of gaseous and inhalable particulate matter into the indoor environment each year.(fn15)

Some of the toxic and carcinogenic agents contained in environmental tobacco smoke include carbon monoxide, nitrogen dioxide, acetone, benzene, benzo(a)pyrene, N-nitrosodimethylamine, and nicotine.(fn16) The main irritants in tobacco smoke are respirable particulates, aldehydes, phenol, ammonia, nitrogen oxides, sulfur dioxide, and toluene.(fn17) Also contained in tobacco smoke are particles that emit ionizing radiation, which when inhaled may cause cancer.(fn18)

Moreover, several studies show that in rooms where smokers are present, carbon monoxide and other toxic substances are commonly found in concentrations that exceed by several times the maximum levels allowed by federal air quality standards; such concentrations in outdoor air would trigger the immediate declaration of an air pollution emergency.(fn19) Three or four hours after a nonsmoker leaves such a smoky environment, carbon monoxide is still in the bloodstream.(fn20)

B. The Nature and Extent of the Harm

As previously noted, the Surgeon General has concluded that involuntary smoking causes lung cancer and other diseases in healthy nonsmokers.(fn21) Another recent study on involuntary smoking was conducted under the auspices of the Environmental Protection Agency (EPA).(fn22) This study concluded that about 5,000 nonsmokers die each year from lung cancer caused by involuntary smoking.(fn23)

If these 5,000 involuntary smoking deaths are distributed proportionately throughout the United States, then a simple calculation based upon U.S. population census data yields a figure of 91 nonsmoker deaths per year from involuntary smoking in the State of Washington.(fn24) Significantly, another independent study estimated that 89.5 nonsmokers die each year from lung cancer in Washington due to involuntary smoking.(fn25) This Washington study concluded that "passive cigarette smoke is likely the most dangerous air pollutant we face today."(fn26)

A recent Canadian study has concluded that "[t]obacco smoke, which contains over 50 known carcinogens and many other toxic agents, is a health hazard for nonsmokers who are regularly exposed to it while at work . . . The evidence on the composition of tobacco smoke and on the health hazards of involuntary exposure suggests that there may not be a 'safe' level for such exposure."(fn27) Other studies have shown that involuntary smoking harms certain lung functions,(fn28) results in double the lung cancer risk,(fn29) and adversely affects persons with heart disease.(fn30)

Similarly, studies show that involuntary smoking may be harmful to fetuses and children. When nonsmoking pregnant women are exposed to passive tobacco smoke, the fetal blood picks up significant amounts of toxic tobacco smoke byproducts.(fn31) Also, involuntary smoking by small children results in significantly increased respiratory infections manifested as pneumonia and bronchitis.(fn32) Because of these risks, the National Academy of Sciences recently recommended that tobacco smoke be eliminated from the environments of small children.(fn33)

In terms of physical discomfort, studies indicate that large percentages of nonsmokers have difficulty working near smokers,(fn34) and experience various types of physical distress from exposure to tobacco smoke.(fn35) Based in part on the irritating and noxious effects of involuntary smoking, the National Academy of Sciences has recommended that smoking be banned on all commercial airline flights.(fn36)

On the economic front, a report from the Office of Technology Assessment, Congress's scientific advisory agency, estimated that disease and lost productivity due to smoking cost this nation about $65 billion a year, $43 billion in lost productivity and $22 billion in health care expenses.(fn37) Similarly, other researchers have concluded that employers incur significantly increased costs when they permit smoking in the workplace.(fn38)

Finally, the harmful effects of involuntary smoking have recently been recognized by the Washington Legislature. The legislative intent section of the Washington Clean Indoor Air Act(fn39) provides:The legislature recognizes the increasing evidence that tobacco smoke in closely confined places may create a danger to the health of some citizens of this state. In order to protect the health and welfare of those citizens, it is necessary to prohibit smoking in public places except in areas designated as smoking areas.(fn40)

Involuntary smoking causes a variety of harmful effects in nonsmokers, including lung cancer. The accumulating body of knowledge concerning these harms will likely be a crucial factor in motivating the courts to fashion legal remedies for nonsmokers.

III. The Common Law Right To A Safe and Healthful Workplace

The nonsmoker has an important common law right to a safe and healthful workplace. Relying on this common law right, courts have held that employers may be enjoined from allowing smoking in the workplace.(fn41) A key issue in Washington is whether the Workers' Compensation Act exclusive remedy provisions bar an employee from seeking money damages from, or injunctive relief against, his or her employer.

A. An Employee's Common Law Cause of Action

In the absence of legislation, the common law can provide protection for nonsmokers in the workplace. Every employer has a common law duty to maintain a safe and healthful...