Second-Hand Smoke and the Workplace

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 Does the Law Regulate Secondhand Smoke in the Workplace?

Secondhand smoke, also known as environmental tobacco smoke (ETS), can be a significant health risk for those exposed to it in their place of work. Secondhand smoke carries dangerous carcinogens consumed when smoking a cigarette. Regular exposure to secondhand smoke increases the risk of developing lung cancer and heart disease. It can also worsen medical conditions that are already present.

Some states have passed laws making workplaces entirely smoke-free. Even in the absence of state laws against smoking in the workplace, employers may still adopt smoke-free workplace policies.

Which States Have Banned Smoking at Work?

The states with statewide bans on smoking in workplaces, including in bars and restaurants, are:

  • Alaska
  • Arizona
  • California
  • Delaware
  • Hawaii
  • Illinois
  • Iowa
  • Kansas
  • Maine
  • Maryland
  • Massachusetts
  • Michigan
  • Minnesota
  • Montana
  • Nebraska
  • New Jersey
  • New York
  • North Dakota
  • Ohio
  • Oregon
  • Rhode Island
  • South Dakota
  • Utah
  • Vermont
  • Washington
  • Wisconsin

These states may have some exceptions to the smoking ban, such as tobacconists and casinos.

There are also several states who have enacted statewide smoking bans but have made exceptions for certain workplaces. In some cases, major cities in states with bans have been exempted. States such as these include Colorado, Connecticut, Florida, Idaho, Indiana, Louisiana, Nevada, New Hampshire, New Mexico, North Carolina, Pennsylvania, and Tennessee.

The following states have no smoking ban:

  • Alabama
  • Arkansas
  • Georgia
  • Kentucky
  • Mississippi
  • Missouri
  • Oklahoma
  • South Carolina
  • Texas
  • Virginia
  • West Virginia
  • Wyoming

In most of these states, cities can establish ordinances banning smoking in workplaces.

Can Secondhand Smoke in the Workplace Cause Disability?

Whether a worker’s condition legally qualifies as a disability is determined case-by-case. In most cases, workers bringing secondhand smoke-related lawsuits claim they are disabled under the ADA and the Rehab Act because they have a physical or mental impairment that substantially limits a major life activity.

Employees have been most successful in ADA cases when they argue that secondhand smoke substantially limited their ability to breathe on and off the job. Courts have especially noted in the past whether the employee sought medical care, left work because of the condition, or continued participating in activities of daily living.

However, courts have found that employees did not qualify as disabled under federal disability laws in some cases. Courts have found that an employee’s impairment was not substantial if the employee’s ability to breathe was not impaired both on and off the job. In some cases, courts have found that employees do not qualify as substantially limited in the major life activity of working if their exposure to smoke impaired their ability to work only in one particular job, but not in a broad class of jobs. Courts evaluate each case based on the specific facts of the situation.

Courts also consider any factors that may mitigate your impairment, such as inhalers or other medication. However, just because you use an inhaler or take medication does not mean that the ADA or Rehab Act doesn’t cover you. You may still be substantially limited in a major life activity regardless of the use of medicine, which may only lessen your symptoms.

How Can I Get Reasonable Accommodations?

Reasonable accommodations include modifications or adjustments to a work environment that would allow a disabled person to perform the position’s essential functions. Employers do not have to accommodate employees if doing so would impose an undue hardship or expense.

If you are an employee with a secondhand smoke-related disability and your employer has made little effort to address your request for a smoke-free workplace, you may be able to prevail in a lawsuit against your employer. Employers cannot simply bar employees from smoking in your presence – they must accommodate your sensitivity to residual smoke. Your employer must prove that a smoke-free work environment would create an undue hardship. Studies have shown that smoke-free workplace policies and laws are inexpensive to implement and do not harm the businesses that have implemented them.

If your employer fails to make reasonable accommodations requested under the ADA, you may seek monetary damages, injunctive relief (a court order to prevent future harm), and attorney’s fees in some circumstances.

What Should You Do If You Are Exposed to Secondhand Smoke in Your Workplace?

First, check the laws and local ordinances in your state. It may be that your state or city has a smoking ban that your employer is not observing. If so, your state or city may have a procedure to bring your workplace into compliance with the law.

If your exposure to secondhand smoke has caused illness or exacerbated an existing illness, you may be able to file a claim under the Americans with Disabilities Act (ADA). The ADA allows employees with disabilities to have accommodations in the workplace. If a worker has a sensitivity to tobacco smoke, filing a claim with the ADA may help them get a smoke-free workplace.

However, the sensitivity may have to be documented and severe as with people who have serious asthma. Even if the accommodation is not a full workplace smoking ban, it may be a lesser accommodation, such as limiting smoking to a specific outdoor area.

There are some other legal theories (nuisance, for example) under which those affected by secondhand smoke have attempted to bring claims against their employers regarding smoking in the workplace. You may consult an attorney about the possibilities for filing a lawsuit against your employer.

If you cannot get your employer to adopt a smoke-free workplace policy, it may be that your only recourse is to seek employment elsewhere. However, you may apply for workers’ compensation benefits or unemployment benefits in this case.

Filing a Workers’ Compensation Claim for Secondhand Smoke

Many workers exposed to secondhand smoke in the workplace have experienced either a new medical condition or the worsening of an existing condition. Many of these workers have filed claims for workers’ compensation and have been successful. Whether you are successful may depend on the state in which you work, but many states in the U.S. have treated these types of cases favorably.

To be awarded workers’ compensation benefits, it is necessary to show that your illness or worsened illness results from your workplace environment. You will also need to prove that your illness is directly related to your work duties. If your illness meets these conditions, it is considered an occupational disease.

Other factors will help in gaining an award of workers’ compensation benefits. A doctor will need to attest to your diagnosis and that your illness, in the doctor’s opinion, resulted from secondhand smoke exposure.

It will also help to show that your workplace is the only place where you are exposed to secondhand smoke. You will need to demonstrate that you have a medically recognized reason for being extra sensitive to secondhand smoke (like asthma, as mentioned above).

Should I Contact an Attorney for Issues with Secondhand Smoke in the Workplace?

Regardless of what course of action you choose, you should consult an worker’s compensation attorney. An experienced attorney will inform you of the relevant laws and advise you of your options for legal remedies. Use LegalMatch today to find the right lawyer in your area. There is no fee to schedule a consultation.

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