Employers Face An Expanding Responsibility
To Provide A Smoke-Free Workplace

The presence of tobacco smoke in the workplace has become a major issue in the last few years. Some states and many municipalities have enacted various laws prohibiting smoking in the workplace except in designated areas. The Illinois House and Senate just approved the Illinois Indoor Air Act at the time this article was written. That Act awaits the Governor's approval. If approved as presented to the Governor, the Act will require state government agencies, units of local government, school districts, places of employment and places open to the public to prohibit smoking in areas which are used by or open to the public except for designated smoking areas and private offices.

Regardless of any laws which require employers to provide smoke-free workplaces, a developing body of caselaw makes it apparent that the courts are becoming more willing to impose such a duty where an employee is especially sensitive to smoke. Furthermore, the courts are beginning to treat workplace tobacco smoke as a toxic substance, particularly after the Surgeon General's report in 1986 which described the hazardous effects of secondhand smoke on non-smokers. This increases employers' duties to protect all employees from tobacco smoke and has given non-smokers, particularly those who are especially sensitive to tobacco smoke, grounds for suing employers due to the presence of tobacco smoke in the workplace. Such suits have been brought under a variety of different theories and statutes and have requested various types of relief such as injunctions, damages and the recision of any discipline for the employees refusal to work in areas where tobacco smoke is present. Although the concept of a tobacco smoke-free environment is a developing trend, employers would be wise to develop policies which restrict the exposure of non-smokers to tobacco smoke irregardless of whether state law requires them to do so.

Smoking in the workplace is not a matter which rises to constitutional proportions for smokers or non-smokers. Employees do not have a constitutional right to a smoke-free environment.¹ Employees also do not have a constitutional right to smoke in the workplace. Employers may impose regulations restricting smoking to certain areas in the workplace.² Employers may also prohibit employees from smoking during non-working hours under special circumstances such as when the employees are already exposed to large amounts of smoke as firemen. However, it should be noted that there are some constitutional interests in smoking during non-working hours so that any employer attempt to prohibit off-duty smoking must be supported by a significant employer objective and strong evidence that the off-duty smoking ban will promote that objective.³ It is possible this standard may also apply to a total ban on smoking in the workplace.⁴

Although employees do not have a constitutional right to a smoke-free workplace, it is well-settled that employers have a duty to provide a reasonably safe workplace for their employees.⁵ It should be noted that the workplace need only be reasonably safe, it does not have to be accident or risk free. Employers need only take the precautions that an ordinary prudent person would take to alleviate unsafe working conditions.⁶

It has become increasingly clear in the past years, especially since the Surgeon General's report in 1986, that tobacco smoke is a risk to the health of non-smokers as well as smokers. The Illinois and various other legislatures have recognized this and have begun to enact laws limiting the public areas in which smoking is permitted. The courts are also beginning to recognize this fact and are ruling that employers who allow tobacco smoke in the workplace may be violating their duty to provide a reasonably safe workplace.⁷ Nonsmoking employees do not assume the hazard of working in a smoke-filled office because tobacco smoke is not a natural byproduct of the employer's business.⁸

Courts are becoming more willing to take action against tobacco smoke in the workplace because they believe employers know of the hazardous effects of secondhand tobacco smoke on non-smokers and have the means to eliminate the risk with little expense and disruption to their operations. Furthermore, courts recognize that employers ban smoking in certain areas to prevent damage to equipment⁹ and may be offended when employers do not do so to protect employees.

December 1989 / Illinois Municipal Review / Page 25

This was the case where one court reacted to such a situation by stating;

The company already has in effect a rule that cigarettes may not be smoked around the telephone equipment. The rationale behind the rule is that the machines are extremely sensitive and can be damaged by the smoke. Human beings are also very sensitive and can be damaged by cigarette smoke. Unlike a piece of machinery, the damage to a human is all too often irreparable. If a circuit or wiring goes bad, the company can install a replacement part. It is not so simple in the case of a human lung, eye or heart. The parts are hard to come by, if indeed they can be found at all.

A company which has demonstrated such concern for its mechanical components should have at least as much concern for its human beings.¹⁰

Employers need only take reasonable measures to protect non-smoking employees from the hazards of tobacco smoke. Typically, this involves restricting smoking to designated non-work areas.¹¹ Employers have also separated the work stations of non-smokers from smokers.¹² However, this may or may not be reasonable depending upon the amount of exposure of the non-smokers to the smoke due to the proximity of the smokers to the non-smokers, types of barriers between the smokers and non-smokers, need for the non-smokers to go to the smokers' work stations, effectiveness of ventilation, sensitivity of non-smokers to smoke and other factors.¹³ Employers increase their liability risks in such situations as the courts become increasingly willing to restrict workplace smoking.

Employers need only take precautions to protect the ordinary non-smoker from the effects of tobacco smoke. They do not have to adapt the workplace to such an extent that it will protect extra-sensitive non-smokers¹⁴ unless they have knowledge that an employee is especially sensitive to tobacco smoke. They then must take reasonable means to protect such employees from tobacco smoke.¹⁵

Employers who do not take reasonable steps to protect especially sensitive employees from tobacco smoke face a variety of legal claims. Although only smoke-sensitive employees have brought such suits in the past, there is no reason other employees could not do so also. The most serious and most costly is a claim for damages for employer negligence. Public employers may be susceptible to negligence claims in situations where their tort immunity does not apply and workers' compensation laws do not cover the diseases or ill effects of secondhand smoke on non-smokers as an occupational disease. Employees alleging employer negligence must show that the employer was aware of the hazardous nature of secondhand smoke on non-smoking employees (courts now accept this as common knowledge) and the employer failed to take the precautions that an ordinary prudent person in similar circumstances would have taken to prevent the harm caused by secondary tobacco smoke in the workplace.¹⁶ Whether a proposed precaution is reasonable depends upon the employer's authority, ability, financial resources and the means available to it to control smoking in the workplace.¹⁷ Again, courts feel that the means available to employers for protecting non-smokers from tobacco smoke are not onerous and do not interfere with the employer's ability to operate its business.¹⁸

Employees may also file suit alleging their employer has violated the Rehabilitation Act of 1973 by allowing tobacco smoke in the workplace because their sensitivity to tobacco smoke is so severe that it interferes with their ability to work and the employer has not made reasonable accommodations for their handicap.¹⁹ Employees have also filed suits seeking injunctions barring the smoking of tobacco products in the workplace²⁰ and the recision of discipline they received for refusing to work in an environment with tobacco smoke.²¹

Employers may wish to institute some kind of workplace smoking regulations to protect themselves from potential lawsuits filed by non-smoking employees. However, they may not be free to do so without employee input if their employees are unionized. Such employers probably have a duty to bargain any such regulations. A hearing officer for the Illinois Educational Labor Relations Board has determined that a total prohibition on smoking anywhere in the employer's building is a mandatory subject for bargaining. Such a policy was found to have a direct impact on the working conditions of employees because they would have to go outside to smoke whereas before they could smoke in the building and faced discipline if they violated the policy. Such a policy was found to affect matters of managerial policy less than employees' working conditions because it was not instituted for educational reasons and affected smoking employees'

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daily work routine. Therefore, the employees' rights outweighed the employer's.²²

Most of the other states that have considered the issue have determined that smoking policies are not fundamental to management's decisions on the goals of the enterprise and the broad methods used to obtain them and must be bargained.²³ However, smoking policies may not need to be bargained if their implementation is an exercise of an inherent managerial policy such as when they are imposed to be consistent with the subject matter of school courses and to foster student respect for school authority.²⁴ Employers also need to inspect their labor contracts to determine whether they contain any language regarding smoking, work or lunch breaks, free time, employees' rights or any other language which may be affected by a smoking policy. Employers who establish forms of discipline for violating smoking policies may have to negotiate such discipline if their labor contracts already establish various disciplinary procedures and punishments.²⁵

Employers clearly have a duty to provide employees with a safe workplace. The evidence shows that tobacco smoke is unhealthy for non-smoking employees. Irregardless of state law, employers need to consider smoking policies to protect non-smoking employees from exposure to tobacco smoke. However, any policies will most likely need to be bargained with the employees bargaining representative if there is one.

FOOTNOTES:

1. Federal Employees For Non-Smokers' Rights v. United States, 446 F.Supp. 181, (1978 D.U.C.); G.A.S.P. v. Mecklenburg County, 42 N.C. App. 225,256S.E.2d477 (l979}; Kensell v. Oklahoma, 716 F.2d 1350 (10th Cir. 198.3).

2. Rossie v. State of Wisconsin, 133 Wis.2d 341, 395 N.E.2d 801 (1986); Crusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987).

3. Crusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987).

4. Department of Health & Human Services, Indian Health Service, Oklahoma City v. Federal Labor Relations Authority, 885 F.2d 911 (D.C. Cir. 1989).

5. Starck v. Chicago N.W.Ry.Co., 4I11.2d 611,123 N.E.2d 826; Shimp v. New Jersey Bell Telephone Company, 145 N.J. Super. 516, 368 A.2d 408 (1976); Smith v. Western Electric Company, 643 S.W .2d 10 (Mo.App. 1983); Gordon v. Raven Systems & Research, 462 A.2d 10 (U.C. 1982); McCarthy v. Department of Social & Health Services, 110 Wash.2d 812, 759 P.2d 351 (1988).

6. McCarthy v. Department of Social & Health Services, 110 Wash.2d812, 759 P.2d 351 (1988).

7. Shimp v. New jersey Bell Telephone Company, 145 N.J.Super. 516,368 A.2d 408 (1976); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983); McCarthy v. Department of Social & Health Services, 110 Wash.2d812, 759 P.2d 351 (1988).

8. Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516,368 A.2d 408 (1976).

9. Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516,368 A.2d 408 (1976); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983).

10. Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516, 368 A.2d 408 (1976).

11. Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516, 368 A.2d 408 (1976); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App.l983).

12. Gordon v. Raven Systems & Research, 462 A.2d 10 (D.C. 1982); Vickers v. Veterans Administration, 549 F.Supp. 85 (W.D. Wa. 1983).

13. Vickers v. Veterans Administration, 549 F.Supp. 85 (W.D. Wa. 1983); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983).

14. Gordon v. Raven Systems & Research, 462 A.2d 10 (D.C. 1982).

15. Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516, 368 A.2d408 (1976); Vickers v. Veterans Administration, 549 F.Supp. 85 (W.D. Wa. 1983); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983); Gordon v. Raven Systems & Research, 462 A.2d 10 (D.C. 1982); McCarthy v. Department of Social & Health Services, 110 Wash.2d812.759 P.2d 351 (1988).

16. McCarthy v. Department of Social & Health Services, 110 Wash.2d 812, 759 P.2d 351 (1988).

17. 145 N.J.Super. 516, 368 A.2d 408 (1976); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983); Vickers v. Veterans Administration, 549 F.Supp. 85 (W.D. Wa. 1983); McCarthy v. Department of Social & Health Services, 110 Wash.2d 812, 759 P.2d 351 (1988).

18. Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516, 368 A.2d 408 (1976); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983); McCarthy v. Department of Social & Health Services, 110 Wash.2d 812, 759 P.2d 351 (1988).

19. Vickers v. Veterans Administration, 549 F.Supp. 85 (W.D. Wa. 1983); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983).

20. Shimp v. New Jersey Bell Telephone Company, 145 N.J.Super. 516, 368 A.2d 408 (1976); Smith v. Western Electric Company, 643 S.W.2d 10 (Mo.App. 1983).

21. Gordon v. Raven Systems & Research, 462 A.2d 10 (D.C. 1982); 816 F.2d 539 (10th Cir. 1987).

22. Evergreen Park Community High School District No. 231, 4 PERI 1087, Case No. 88-CA-0001-C (IELRB Hearing Officer, 1988).

23. Commonwealth of Pennsylvania v. Commonwealth of Pennsylvania, Pennsylvania Labor Relations Board, 74 Pa.CmwIth. 1, 459 A.2d 452 (1983); Department of Health & Human Services, Indian Health Service, Oklahoma City v. Federal Labor Relations Authority, 885 F.2d 911 (D.C. Cir. 1989).

24. Chambersburg Area School District v. Commonwealth of Pennsylvania, 60 Pa.CmwIth. 29, 430 A.2d 740 (1981).

25. Johns-Manville Sales Corp. v. International Assoc. of Machinists, 621 F.2d 756 (5th Cir. 1980).

December 1989 / Illinois Municipal Review / Page 27