Tobacco Smoke in the Workplace

OSHA rules apply to tobacco smoke only in the most 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, when asked to intercede on workplace complaints about tobacco smoke, Environmental Protection Agency (EPA) officials typically hedge that “exposures to the carbon monoxide or other toxic substances in the tobacco smoke rarely exceed current OSHA permissible exposure limits or PELs.” (OSHA Standards Interpretation and Compliance Letter, 10/26/98.)

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 EPA, 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.

Although there is no federal law that directly controls smoking at work, a majority of states protect workers from unwanted smoke in the workplace. In addition, hundreds of city and county ordinances restrict smoking in the workplace, but only a few of these local laws 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. And, because it has much encouragement and financial support from the tobacco industry, this smokers’ rights movement appears to be gaining strength.

So the ongoing legal battle boils down to a question of what is more important: one person’s right to preserve health by avoiding coworkers’ tobacco smoke, or another’s right to smoke without the interference of others.

1. Protections for Nonsmokers

The sentiment against smoking in the workplace and any other shared space 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 those states that forbid work-related discrimination against smokers or discrimination against employees on the basis of any legal activities outside work, there is nothing to prevent employers from establishing a policy of hiring and employing only nonsmokers.

Clearing the Air in the Workplace

If your health problems are severely aggravated by coworkers’ 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.

Example

Carmelita’s sinus problems were made almost unbearable by the smoke created by the people who work with her in an insurance claims processing office. Since her job involves primarily individual work on a computer terminal and no contact with people outside the company, Carmelita convinced her employer to allow her to start her workday at 4 p.m., just an hour before her coworkers leave for home.

When Carmelita needs to discuss something with coworkers or her supervisor, she does so via electronic mail or at occasional one-hour staff meetings that begin at 4 p.m.—and at which smoking is not allowed.

• Check local and state laws. As indicated, 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 nonsmokers’ rights group.
  

• Consider filing a federal complaint. While OSHA is handling an increasing number of smoking injuries, most claims for injuries caused by secondhand 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 to provide some benefits while you look for a new job.
  

While most states now protect workers from unwanted smoke on the job, they follow different approaches. Many states have laws that specifically address smoking in workplaces; they live on the books alongside regulations that apply to other areas. A large number of states have smoking control laws that apply to everyone in public places and specified private places; nonsmoking employees in these states 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 antismoking 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 nonsmoking employees must brave the smoke when they are guests in 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 while they are confined, and

• employers who can show that it would be financially or physically unreasonable to comply with the legal limitations.

Caution

Additional protection under the ADA. Some workers who are injured by smoke on the job have brought successful claims 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.

2. Protections for Smokers

Because of the potentially higher costs of health care 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 prehiring interviews.

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 job requirement. 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 employers, are free to charge smokers higher health insurance premiums than nonsmoking employees must pay.

3. State Laws on Smoking

The chart below summarizes state laws setting out rights and responsibilities for both smokers and nonsmokers. Different rules may apply to workplaces that are also public spaces, such as restaurants, bars, hotels, or casinos; those rules are not covered here. Beware that even if there is no statute regulating smoking in the workplace, there may still be a state administrative regulation or local ordinance that does control. Call your state labor department for more information.