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October 15, 1998

Environmental tobacco smoke (ETS) is both a serious health risk and a source of significant discomfort. While a few states and numerous municipalities have passed laws eliminating most indoor smoking at places of employment, many have not. Though there are no fail-proof solutions to workplace smoking conflicts, outlined below are a set of steps that you can take to protect your right to breathe clean indoor air.

Try to work it out amicably.

Before taking any other steps, approach the situation positively. Begin with the assumption that your co-worker or employer is interested in your comfort and well-being. Take a friendly, educational approach. If the problem is caused by only one or two smokers, let them know that you are experiencing difficulty from their secondhand smoke, and that you are concerned about your health. Be sympathetic to their situation, and try to avoid blame. Let them know that you are flexible and interested in working out a mutually satisfying solution.

Determine what regulations govern your worksite.

The potential remedies available to you depend, in part, on whether you work in the private sector or for some level of government. If you work for the federal government, for example, your workplace is probably covered by Executive Order 13058 which prohibits smoking in most federally-owned or leased buildings (GSA, 1997). If you work for a state, county, or city government, there may or may not be an applicable smoking policy. Similarly, if you are employed in a private workplace, there may or may not be applicable statutes. To determine what specific smoking laws apply to your workplace, contact the Tobacco Control Section of your local health department. They can also inform you about the appropriate enforcement mechanisms.

Many workplaces have voluntary smoking policies. Particularly if you work for a large, private-sector employer, it is likely that the company has a formal policy and grievance procedure. Be sure to find out what that policy is and then follow the specified grievance procedure.

All workplaces, in theory if not always in practice, are covered under the "general duty clause" of the Occupational Safety and Health Act (29 USC 654(a)(1)). This clause requires employers to eliminate all foreseeable and preventable hazards in the workplace. Since the Environmental Protection Agency (EPA) and the National Institute of Occupational Safety & Health (NIOSH), as well as numerous scientific studies and organizations, recognize ETS as a workplace carcinogen, ETS falls under this provision. Enforcement of OSHA's general duty clause, however, is inconsistent.

If you decide to file an OSHA complaint, you may do so without your name being revealed to your employer. Contact your local OSHA (check the phone book under US Government, Labor Department, or call 1-800-321-OSHA) and request a complaint form. (Please note that some states administer their own OSHA Approved Safety and Health Programs; if you live in a "State Plan State" you must contact that office.) When you receive the complaint form, fill out questions 2-17. To file a complaint, you will not need an attorney. Once OSHA receives your complaint, they might call for additional information, they might negotiate informally with your employer to limit smoking, and they might simply refuse to act on the complaint.

Are you uniquely sensitive to ETS?

Everyone is entitled to breathe smokefree air. However, some people are uniquely sensitive to tobacco smoke and they are afforded additional protections under federal anti-discrimination statutes. If you have a chronic health condition (e.g., lung or heart disease) that places you at significant risk when exposed to ETS, or if you experience a severe reaction to exposure to ETS, then you may be considered "handicapped" under federal law. The Federal Rehabilitation Act of 1973 protects employees working for the federal government or in workplaces receiving federal funds. The Americans With Disabilities Act (ADA) protects sensitive nonsmokers in private-sector employment, as well as in state and local government.

If you believe that you may be covered by the federal anti-discrimination laws, call ANR (510-841-3032) and request our fact sheet, "Using Federal Anti-Discrimination Laws to Promote Clean Indoor Air."

Share information with your employer.

Your employer may be unaware that it is perfectly legal to designate a worksite smoke-free. People sometimes believe that there is a "right to smoke." However, there is no such legal right, and the courts have held that protection of nonsmokers against the hazards of secondhand smoke takes precedence over smokers' desire to light up wherever they choose (Sweda, 1997).

Employers also may not be aware of the various legal protections afforded nonsmokers and the legal remedies that can be pursued by someone who is being impacted by secondhand smoke. Sharing what you have learned about the laws protecting you can empower your employer to take a more active stance in the situation.

You may also want to remind your employer of the significant economic costs associated with smoking. Smoking increases the risk of fire, hikes maintenance costs, results in higher absenteeism, and adds a premium to health and life insurance rates (Business & Health, 1997). Additionally, secondhand smoke exacts a toll on nonsmokers in the workplace. Estimated costs associated with the effects of secondhand smoke on nonsmoking employees range as high as $490 per smoker per year (Jackson & Holle, 1985).

Your employer may be interested to know that there is a growing trend toward making workplaces completely smokefree (Gerlach, et al., 1997). This is due both to the increasing evidence regarding the harmful effects of secondhand smoke, and the increasing liability this represents for employers who continue to expose their workers to a known health hazard.

Find allies.

You may not be the only one offended by secondhand smoke in your workplace. Others may be willing and interested in joining with you to find a solution. When discussing the problem of secondhand smoke with your employer, you are likely to have greater success with many voices instead of one.

You may be surprised to find allies among smokers. This issue should not be thought of as a "smokers vs. nonsmokers" battle. Many smokers, who may well have tried to quit, are concerned with secondhand smoke and do not want to endanger or annoy others. Some smokers may prove to be strong allies in the effort to make the workplace smokefree.

Get a note from your doctor.

A letter from your physician lends credibility to your complaint. If you have sensitivities to tobacco smoke, get them documented. Possible smoke-related conditions include sore throat, asthma, pulmonary or cardiac disease, hay fever, headache, and allergies. Your physician may provide you with a letter or certificate stating that it is medically advisable for you to be given a smokefree work environment.

Consult your union.

If you are a member of a union, talk to your union representatives. You may want to consider union action and file a grievance. Though unions represent both smokers and nonsmokers, many are recognizing that their job is made easier when 100% smokefree worksite policies are in place. Moreover, increasing numbers of unions are recognizing secondhand smoke as a workplace health and safety concern and that smokefree policies, in the long-run, benefit both smokers and nonsmokers (Sorensen, 1996).

What if my boss is the problem?

This can be one of the most difficult situations to resolve. The best approach is often a cordial and informal one. Let your boss know that you are just concerned for your job performance and health. Try to be creative with potential solutions.

If your boss is recalcitrant, you may need to go over his or her head, if possible. If that is not possible, and you are determined to stay on the job and seek a remedy, you may be forced to take legal action. Technically, your boss cannot fire you for making a complaint and, should you be discharged after making one, you might want to file a wrongful termination suit. However, it can be difficult to prove that you were let go because of the complaint. Be sure to keep a careful paper trail documenting each step taken.

As a last resort, consider legal action.

Nonsmoking workers harmed by secondhand smoke in the workplace have won lawsuits against their employers based on a number of issues, including Workers' Compensation, Unemployment Compensation, Wrongful Termination, Negligence, and Disability Benefits (Sweda, 1997).

Before seeking legal remedy, consult an attorney. You may be able to get a referral from your local Bar Association. Ask for the names of attorneys who have experience on the labor side of labor-management relations law.

Please note: The American Nonsmokers' Rights Foundation cannot provide legal referrals, nor should any of the information provided in this packet be construed as legal advice.

REFERENCES

Business & Health Special Report: What Cigarettes Do to American Business. The High Price of Cigarette Smoking. Business & Health. 15:8, Supplement A, pp. 6-9, Summer 1997.
General Services Administration Bulletin FPMR D-245. Federal Register. 62:202, October 20, 1997.
Gerlach, K.K., Shopland, D.R., Hartman, A.M., Gibson, J.T., & Pechacek, T.F. Workplace Smoking Policies in the United States: Results From a National Survey of More Than 100,000 Workers. Tobacco Control. 6:199-206, 1997.
Jackson, F.N., Holle, R.H.O. Smoking: Perspectives 1985. Primary Care. 12:197-216, 1985.
Sorensen, G. Organized Labor and Worksite Smoking Policies: Results of a Survey of Labor Leaders. New Solutions. 6:57-60, 1996.
Sweda, E. Summary of Legal Cases Regarding Smoking in the Workplace and Other Places. Boston, MA: Tobacco Control Resource Center, Inc., September 1998.

© 1998 The American Nonsmokers' Rights Foundation