The combination of smoking with exposure to hazardous substances at the workplace presents a serious health risk, according to the 1985 Surgeon General’s report on The Health Consequences of Smoking: Cancer and Chronic Lung Disease in the Workplace.
According to the 1979 Surgeon General’s report on smoking and health, cigarette smoking can:
transform existing chemicals into more harmful ones
increase exposure to existing toxic chemicals
add to the biological effects caused by certain chemicals
interact synergistically with existing chemicals
An example of how this could come into play in your workplace is that the health effects of workplace exposure to asbestos for a smoker are greater than the health effects of asbestos exposure for a non-smoker. Furthermore, the risks of being exposed to asbestos and smoking are greater than the sum of the risks of separate exposures.
Why go smoke free – liability ?
As early as 1972, the Surgeon General warned that cigarette smoke was dangerous to nonsmokers. Since then, countless studies and reports by government agencies and public health researchers all over the country have warned of the dangers of secondhand smoke. Failing to protect your employees from secondhand smoke becomes more legally hazardous with every new scientific study documenting the health risks of cigarette smoke. Court rulings and state, county, and city statutes and regulations across the nation have begun to regulate indoor air quality and provide protection from secondhand smoke to nonsmokers, including over 800 local ordinances imposing restrictions on tobacco use by 1996. Under North Carolina law, any private business has the right to restrict smoking in its buildings, on its grounds and in company-owned vehicles.
Legal liability is a significant issue for employers, because no one has the right to impose a health risk on others, and because an employer has a common-law responsibility to provide a safe and healthful workplace. Because secondhand smoke has been classified as a Group A (known human) carcinogen, it would be difficult to argue that an employer who has not reduced secondhand smoke to the lowest possible levels has provided a safe workplace. Employees can even sue for protection against cigarette smoke under the Americans with Disabilities Act.2
Americans with Disabilities Act
Any business that accommodates the public is subject to the Americans with Disabilities Act, which defines a person with a disability as one who has a physical or mental impairment that substantially limits one or more major life activities. People with chronic respiratory illnesses such as asthma have filed claims using the ADA, claiming successfully that breathing is one of life’s “major activities.”
For example, these people could be able to successfully pursue a claim using the Americans with Disabilities Act:
An individual who suffers from asthma challenges an ETS policy that allows smoking outside the state courthouse because the smokers outside prevent him from entering the building.
An individual who suffers from emphysema challenges the ETS policy of a restaurant because he is unable to eat there when smoking is allowed in the restaurant. Interested in buying Snus Nicotine ?
An individual with a history of laryngeal or lung cancer who works at a private business challenges the ETS policy because it allows his coworkers to smoke near his workspace.
Many types of businesses that allow smoking by customers, such as bars, restaurants, prisons, pool halls, bingo halls, and hotels, are at high risk of being sued by employees for secondhand smoke exposure. The National Restaurant Association recognizes secondhand smoke as enough of a danger that its lawyers warn its members that if they allow smoking in their restaurants, they may be legally liable if an employee develops an illness from breathing secondhand smoke.
Companies are already getting sued for secondhand smoke exposure – and losing!
The U.S. Court of Appeals for the Second Circuit ruled in 1995 that three asthmatic children could sue Burger King and McDonald’s for secondhand smoke exposure, and declared that a ban on smoking could be a reasonable modification.2
The first secondhand smoke case was Shimp vs. New Jersey Bell, in 1976. A phone company representative won a permanent injunction banning smoking in the office where she worked. The court said, “The evidence is clear and overwhelming. Cigarette smoke contaminates and pollutes the air, creating a health hazard not merely to the smoker but to all those around her who must rely upon the same air supply. The right of an individual to risk his or her own health does not include the right to jeopardize the health of those who must remain around him or her in order to perform properly the duties of their job.” The courts recognized over 25 years ago that it was unreasonable to expect nonsmokers to breathe smokers’ smoke-filled air.2
In 1990, a vegetarian nonsmoker with no history of heart disease in his family won a case against the restaurant where he worked. After being exposed to cigarette smoke while waiting tables for five years, he had a smoke-induced heart attack. He was awarded $85,000 in medical bills and $10,000 in disability compensation.2
In 1995, a widower of a Veterans Affairs hospital nurse was awarded death benefits on the grounds that his wife’s fatal lung cancer was caused by exposure to secondhand smoke while treating patients.1,2
Airline flight attendants have been successful in suing tobacco companies for health problems related to the flight attendants’ exposure to secondhand smoke on the job.