Secondhand smoke, also known as environmental tobacco smoke (ETS) can be a significant health risk for those who must deal with it in their place of work. Secondhand smoke carries all the dangerous carcinogens that are consumed when actually smoking a cigarette, so regular exposure to secondhand smoke (just as with being an actual smoker) increases the risk of developing both lung cancer and heart disease. It can also worsen medical conditions that are already present.
Some states in the U.S. have passed laws making them 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 that have statewide bans on smoking in workplaces, including 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 and Wisconsin. These state may have some exceptions to the smoking ban such as tobacconists and casinos.
There are also a number of states who have enacted statewide smoking bans, but who 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 in place: Alabama, Arkansas, Georgia, Kentucky, Mississippi, Missouri, Oklahoma, South Carolina, Texas, Virginia, West Virginia and Wyoming. However, in most of these states it is possible for cities to establish ordinances banning smoking in workplaces, and many have done so.
What Should You Do If You are Exposed to Secondhand Smoke in Your Workplace?
First, check the laws in your state, and check local ordinances. 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 follow in order 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 for 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 to get a smoke-free workplace.
The sensitivity may have to be documented and severe, however, as with people who have serious asthma. Even if the accommodation is not a full workplace smoking ban, it may be that a lesser accommodation (such as limiting smoking to a specific outdoor area) can be adopted that will help with secondhand smoke exposure.
There are a number of 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 are unable to get your employer to adopt a smoke-free workplace policy, it may be that your only recourse is to seek employment elsewhere. However, in this case, you may apply for workers’ compensation benefits, or unemployment benefits.
Filing a Workers' Compensation Claim for Secondhand Smoke
Many people who have been exposed to secondhand smoke in the workplace, and have, as a result, experienced either a new medical condition or the worsening of an existing condition, have filed claims for workers’ compensation and been successful. Whether you are successful may depend on the state in which you work, but a number of states in the U.S. have treated these types of cases favorably.
In order to be awarded workers’ compensation benefits, it will be necessary to show that your illness or worsened illness is a result of 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 to be an occupational disease.
There are other factors that will help in gaining an award of workers’ compensation benefits. A doctor will need to attest to your diagnosis, and the fact 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 also 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 employment attorney. An experienced attorney will be able to inform you of the relevant laws, and advise you of your options for legal remedies.