Smoking in the Workplace: Still a Burning Issue

Learn about laws that govern smoking in the workplace.

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 that emerges from exhaling and burning cigarettes causes approximately 3,000 lung cancer deaths and 37,000 heart disease deaths in nonsmokers each year. 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.

Workplace bans and limits on smoking are still controversial, but gaining support. According to a recent Gallop poll, for example, 94% of Americans -- smokers and nonsmokers -- now believe companies should either ban smoking totally in the workplace or restrict it to separately ventilated areas.

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 or ban smoking in the workplace. 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.

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.

To read and printout a copy of the Form please link below.

Checklist: Has My Employer Followed the Law?

You can download a free copy of Adobe Acrobat Reader at
http://www.adobe.com/acrobat/readstep.html

Copyright © 2002 Nolo

Disclaimer

This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.