K. Workplace Smoking

Most companies are aware of the growing number of federal, state and municipal regulations restricting an employee's right to smoke in the workplace. Coupled with Occupational Safety & Health Adminis- tration (OSHA) requirements to ensure safety in many plants and warehouses, this is creating an additional need for all companies to reevaluate their smoking policies and implement either formal or voluntary rules, depending upon local laws.

Workplace regulations of smoking are divided into two categories: bans on smokers, under which employees are not permitted to smoke at any time (either on or off the job); and regulations of smoking, under which employees are forbidden from smoking in various parts or all of the workplace.

In December l986, the United States Government concluded that environmental or secondary smoke posed a threat to non-smokers and ruled that federal agencies must take reasonable steps to permit smoking only in expressly designated areas. This federal legislation follows a national trend (passed in hundreds of localities and a majority of states) recognizing the rights of non-smokers to work in a smoke-free environment. Thus, knowing the law in the particular state, city and town where your company is located is critical. Additionally, many companies in states that do have formal laws are implementing informal policies to satisfy the requests and needs of their personnel.

TIP: Employers may be unable to unilaterally set a workplace smoking policy when employees are governed by contract because to do so would risk a charge of an unfair labor practice. Thus, where a collective bargaining agreement is in place, consult your labor unions before implementing any smoking policy.

It is well established that employers have a common law obligation to provide a safe workplace for their employees. Under OSHA, management has the right to designate rules pertaining to work assignments to ensure an employee's health and safety. Some companies, prompted by the discovery that materials used in their plants could be especially hazardous to smokers, are announcing that workers can be discharged unless they stop smoking in warehouses and factories. Others are refusing to hire smokers. One company introduced an absolute ban on smoking on-the-job after the company discovered that mineral fibers used in some if its acoustical-products plants could have adverse health effects on both smokers and non-smokers. To date, the policy has not been challenged by workers at the plant.

Thus, consider imposing tougher standards to comply with OSHA regulations because the failure not to impose a smoking ban may be grounds for a lawsuit against your company. For example, the Washington State Court of Appeals permitted a woman to sue her employer for negligence when she developed pulmonary disease following exposure to a co-worker's cigarette smoke. In another case, a female worker was awarded $20,000 in disability pay because she developed asthmatic bronchitis after being transferred to an office with several smokers. The court also ruled that unless the employer transferred her to a smoke-free office, she would be eligible for disability retirement benefits of $500 per month.

The following strategies may help reduce problems in this area:

1. Speak to labor counsel before deciding to terminate or refusing to hire workers on the basis of smoking; such a decision may have serious legal consequences. The law differs on a case-by-case and state-by-state basis. If you wish to adopt a policy that prohibits smoking on the job, avoid extending it beyond the workplace. To do so can create enforceability problems and may violate both an individual's right to privacy and state law. In more than 28 states, laws have recently been enacted to prevent employers (who typically justify such practices to keep the lid on rising health insurance costs) from refusing to hire or retain smokers. Some have gone even further by prohibiting employers from regulating employees' use of any "lawful products" or participation in any "lawful activity" during non-work hours.

2. Issue a formal written company policy when instituting on-the-job smoking bans. This can reduce misunderstandings and confusion. Be sure to apply the policy in a consistent and uniform way to avoid discrimination claims. For example, while it may not be discriminatory to single out and discharge workers who violate company smoking rules, it is certainly discriminatory to fire female smokers but not male smokers who commit the same improprieties.

3. Think twice before imposing a total on-the-job smoking ban. Unreasonable smoking restrictions, such as an absolute ban on smoking throughout the premises, may lead to potential lawsuits on many different legal grounds. In addition to claims of violations of an individual's right to privacy, a total ban may create a possible "disparate impact" discrimination charge, since African-Americans and other minorities tend to smoke in greater numbers than their white counterparts and may be unduly affected by such a policy. Any policy must draw a rational connection between the non-smoking ban and on-the-job performance (which is often hard to prove) to be legal. (Note: On the other hand, some restriction of on-the-job smoking is now required in light of the ADA's requirement for employers to reasonably accommodate employees who suffer from lung disorders and related medical problems.)

4. Be responsive to non-smokers' complaints and seek to properly accommodate their needs. All grievances should be considered and acted upon promptly. By separating smokers from non-smokers, rearranging desks, switching office assignments, moving non-smokers closer to windows or air vents, and erecting partitions, as well as considering other practical solutions, non-smokers may be reasonably accommodated without penalizing or affecting smokers. All such decisions should be made carefully on a case-by-case basis. A sympathetic management that understands and follows the needs of its workplace can go a long way toward protecting the company against formal litigation, OSHA investigations, union intervention or EEOC involvement.

5. Finally, be sure that your company's policy complies with state law and local ordinances and understand the effects of such law before implementing any formal policy in this area.