Managing Workplace Smoking: A Hazy Legal Tangle

Costs to employers

Employee smoking cuts into your bottom line in many different ways. It damages smokers’ health, resulting in lost productivity. And it increases absenteeism, workers’ compensation costs, and insurance premiums. It leads to lawsuits and grievances by smokers who feel that workplace smoking bans and limitations violate their rights. And it leads to lawsuits by nonsmokers claiming that workplace smoke has damaged their health.

Statistics from the U.S. Surgeon General indicate that smoking costs $157 billion in economic losses, including $75 billion in added healthcare costs and $82 billion in lost productivity.

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Here is an overview of the regulatory landscape surrounding workplace smoking, courtesy of one of our sister websites, Safety.BLR.com.

State and Local Requirements

Although there is no federal smoking ban for private employers, 47 states have laws limiting smoking in public places, including workplaces; 40 states and the District of Columbia restrict smoking in private sector workplaces; and all 50 states restrict smoking in government buildings. Local jurisdictions have also banned smoking in public indoor areas, often including restaurants and bars. In states where smoking is confined to designated smoking areas (DSAs), nonsmokers cannot be required to enter the area.

Beyond the law, many employers have banned smoking entirely in their facilities.

Federal Workplaces

Executive Order 13058 requires facilities owned, rented, or leased by the executive branch of the federal government to be smoke-free except in DSAs that are exhausted directly to the outside away from air intake ducts. Agencies may also ban smoking in doorways and courtyards.

Smoking Outdoors

Many laws and ordinances give a specific distance from entrances, windows, and ventilation intakes where outdoor smoking is permitted. It is best to provide covered smoking receptacles in outdoor smoking areas.

Collective bargaining

If your workforce is subject to a union contract, you may need to work with the union and your labor attorney in setting your smoking policy. Unions have maintained that smoking is a contractual privilege, and charges of unfair labor practices have been filed with the National Labor Relations Board over smoking prohibitions.

Employer Liability

In a few states, courts have ruled that an employer’s responsibility to provide a safe workplace includes the duty to provide a workplace free of environmental tobacco smoke (ETS). Even where there is no state mandate that employers provide a smoke-free workplace, employers face potential liability for “intentional harm” lawsuits if they are not taking all reasonable steps to protect employees. For example, a New York state court ordered an employer to pay $3.7 million, including $1.1 million in pain and suffering, to an employee whose asthma was exacerbated by ETS.

The court found the employer liable for failure to accommodate a disability, retaliatory discharge, and subjecting the employee to a hostile work environment.

Workers’ compensation

Employees claim workers’ compensation benefits because of respiratory illnesses attributed to ETS. Results from these allegations have varied from state to state and court to court. Some state appeals courts say disease caused by ETS in the workplace is ineligible because ETS is not specific to the workplace. Increasingly, courts are saying that illness caused by ETS in the workplace is compensable. For example, a New Jersey court awarded workers’ compensation for a teacher’s tonsil cancer caused by a chain-smoking co-worker who shared his office for 26 years.

Americans with Disabilities Act (ADA)

Under the ADA, an addiction to tobacco is not a protected disability. However, several federal courts have ruled that under the Federal Rehabilitation Act and the ADA, a nonsmoking employee’s hypersensitivity to tobacco smoke does qualify as a handicap.

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Discrimination

Thirty-one states and the District of Columbia have passed some form of smoker protection legislation. Charging smokers higher health insurance premiums is not considered discriminatory in some states but may violate federal law. However, premium discounts, rebates, or modified co-payments or deductibles charged in return for adherence to programs of health promotion and disease prevention are legal under federal law.

Sounds like quite a morass, doesn’t it? Well, tomorrow we’ll give you some tips on how you can limit the impact of workplace smoking on your bottom line, including a step that should be your #1 goal—getting your workers to stop smoking.