LRC Comment on Draft CIB - University of Maryland School of Law

September 15, 2014
National Institute for Occupational Safety and Health
NIOSH Docket Office
1090 Tusculum Avenue
MS C-34
Cincinnati, Ohio 45226-1998
Re: CDC-2014-0013 and Docket Number NIOSH-274, NIOSH Current Intelligence Bulletin:
Promoting Health and Preventing Disease and Injury through Workplace Tobacco Policies
Dear Sir or Madam,
The Legal Resource Center for Public Health Policy at the University of Maryland Carey School
of Law submits the following comment in response to Question #4: Are there critical omissions
in the CIB? We suggest that there are four omissions and that the CIB should be revised as
follows:
Recommendation #1: Clarify that there are no legal impediments to implementing a
smoke-free workplace.
First, the CIB should clearly explain that there are no legal impediments to implementing a
smoke-free workplace policy. On page 18, after line 4, the following language should be
inserted:
―Private employers may adopt smoke-free workplace policies without legal impediment. While
opponents of tobacco-free workplace policies often argue that smoking is a personal choice that
is protected by the Due Process Clause, and that smokers are a protected category of persons
under the Equal Protection Clause, these arguments fail for two reasons.1 First, the U.S.
Constitution does not protect a ―right to smoke.‖2 Moreover, any constitutional questions related
to a ―right to smoke‖ are not applicable in the context of private employers, unless there is a
statutory basis accompanying the alleged constitutional violation.3 Although many states have
adopted statutes that prohibit employers from making employment decisions on the basis of offduty tobacco use, these prohibitions do not apply to tobacco use restrictions in the workplace.4
1
Samantha K. Graff, TOBACCO CONTROL LEGAL CONSORTIUM, There Is No Constitutional Right to Smoke, 2–3
(2005), http://publichealthlawcenter.org/sites/default/files/resources/tclc-syn-constitution-2008_0.pdf
2
Micah Berman & Rob Crane, Mandating a Tobacco-Free Workforce: A Convergence of Business and Public
Health Interests, 34 WM. MITCHELL L. REV. 1651, 1661 (2008).
3
Id.
4
Id. at 1662.
For instance, New Jersey law prohibits employers from hiring or discharging employees based
on their use of tobacco products.5 However, the statute expressly preserves existing policies
restricting tobacco use in the workplace.6 The Superior Court of New Jersey has also interpreted
the statute as preserving the right of employers to institute tobacco-free workplace policies.7 The
court rejected an employee’s allegation that his employer had discharged him in violation of the
statute after the employee refused to sign a workplace policy prohibiting smoking in company
vehicles.8 The court reasoned that ―[b]y its plain language, the statute addresses actions against
persons because of their status as tobacco users, but not because of their use of tobacco in the
workplace.‖9
Employers that allow smoking at work may also expose themselves to liability under federal or
state Occupational Safety and Health Acts (OSHA), workers’ compensation claims, disability
discrimination claims, as well as the common law. OSHA’s ―General Duty Clause‖ requires that
employers provide a workplace free from hazards likely to cause death or serious physical
harm.10 Additionally, employees may be able to collect workers’ compensation claims if they
suffer injury or illness at work as a result of exposure to secondhand smoke, and will not have to
prove that an employer was negligent to do so. 11 Moreover, if an employee has an existing
condition that qualifies him or her as ―disabled‖ under the Americans with Disabilities Act, and
that disability is exacerbated by secondhand smoke exposure, an employer that fails to adopt and
enforce a smoke-free policy may also be held liable for failing to provide reasonable
accommodations to protect the employee.12 Finally, employers may be held liable under state
common law: Courts have found that the failure to maintain a smoke-free environment
constitutes a breach of duty to provide a reasonably safe workplace.13 For a more detailed
analysis of employer liability associated with secondhand smoke, see Section ___ of this CIB,
infra p. ___.14‖
Recommendation #2: Add a Model Policy for A Tobacco-Free Workplace.
The CIB should include a model policy for a tobacco-free workplace that companies can
use as a template when they draft their own documents. On page 20, line 20, a new paragraph
should be inserted: ―Employers that choose to ban the use of tobacco products in the workplace
5
N.J. STAT. ANN. § 34:6B-1.
Id. § 34:6B-2 (The statute does not limit ―any applicable law, rules, or workplace policies concerning smoking or
the use of other tobacco products during the course of employment.‖).
7
Still v. Board of Review, No. 296,008, 2012 WL 2035802 (N.J. Super. Ct. App. Div. 2012) (unreported case).
8
Id. at *1, *6. Upon realizing that the employee had been smoking in company vehicles, the employer presented
him with a copy of the company handbook, which included the no-smoking policy, and asked him to sign it to
indicate his acknowledgement. Id. at *1. The employee refused to sign, and was discharged. Id.
9
Id. at *6.
10
See 29 U.S.C. § 654(a)(1) (requiring that each employer ―shall furnish to each of his employees employment and
a place of employment which are free from recognized hazards that are causing or are likely to cause death or
serious physical harm to his employees‖). State OSHA laws typically contain similar provisions.
11
Leslie Zellers et al., Legal Risks to Employers Who Allow Smoking in the Workplace, 97 AM. J. PUB. HEALTH
1367, 1377 (2007).
12
Id. at 1378–79.
13
Id. at 1379–80.
14
We present a more detailed analysis of employer liability associated with secondhand smoke, and suggest
incorporation of this analysis to the proposed CIB, in our ―Recommendation #4,‖ infra.
6
2
will need to draft and distribute a clear policy regarding these activities to their employees. A
model policy can be found in the Appendix to this document. All policies should be customized
by the employer to reflect any applicable laws or regulations from their locality.‖ We include
below a model policy that could be used or modified for this purpose and inserted into the
Appendix section:
Model Policy for a Tobacco-Free Workplace15
[COMPANY]’s TOBACCO-FREE POLICY
I. PURPOSE
[COMPANY] is dedicated to providing a healthy, comfortable, and productive work
environment for all of our employees and clients. The goal of this policy is two fold. First, this
policy is designed to improve the health of [COMPANY]’s employees by promoting tobacco use
cessation. Second, this document aims to promote a safe work environment for everyone who
works on or visits [COMPANY]’s campus.
[Note: Employers may wish to reference the NIOSH Current Intelligence Bulletin
“Promoting Health and Preventing Disease and Injury through Workplace Tobacco Policies” to
provide background information regarding the dangerous health impact of using tobacco
products and secondhand smoke.16]
II. POLICY
Effective [DATE], [COMPANY] is implementing a campus-wide tobacco-free policy
that applies to all employees, clients, and visitors. This policy prohibits the use of any tobacco
products, including but not limited to smokeless tobacco, cigarettes, cigars, and electronic
smoking devices. This policy is in effect at all times, including during and after regular business
hours. Smoking or use of tobacco products will not be permitted in any indoor or outdoor space
owned, leased, or used by the company or within 25 feet of any door, window, or ventilation
system. Additionally, tobacco use will not be permitted in company owned parking lots or
vehicles. This policy also applies to any work function where two or more employees are
present, regardless of where the event is held.
Employees who choose to use tobacco products may do so during their regularly
scheduled breaks off company property. Ashtrays will not be provided or permitted in any
company area. [Smoking areas may be designated at the discretion of management. Any
designated smoking areas must be accompanied by proper signage, and must be located at least
25 feet away from any door, window, or ventilation system.]
III. PROCEDURE
Copies of this policy shall be distributed to all current employees in advance of the
implementation date. All future employees will be provided a copy of this policy during the
hiring process and a copy will be available for review from [COMPANY]’s human resources
department at any time. Signs stating that this is a ―Tobacco-Free Campus‖ will be posted.
15
This policy was drafted based on several different model policies: Model Policy for a Smokefree Workplace,
Americans for Nonsmokers’ Rights, (last visited Sept. 6, 2014), http://www.nosmoke.org/pdf/modelworkplacepolicy.pdf; CDC Tobacco-Free Campus Policy, Centers for Disease Control, (Nov.
1, 2005), http://www.cdc.gov/nccdphp/dnpao/hwi/downloads/CDC_tobacco_policy.pdf; and Tobacco-Free
Business Toolkit: Maryland Business Guide: Creating A Tobacco Free Campus, The Legal Resource Center,
University of Maryland Francis King Carey School of Law, (last visited Sept. 6, 2014),
http://www.law.umaryland.edu/programs/publichealth/documents/smokefree_bus_tookit.pdf.
16
NIOSH Current Intelligence Bulletin: Promoting Health and Preventing Disease and Injury through Workplace
Tobacco Policies, 79 Fed. Reg. 158, 48169, (Aug. 15 2014).
3
Compliance with this policy is mandatory and violations will be subject to disciplinary
action in accordance with other relevant company policy. Repeated violations may result in more
serious disciplinary action, to be handled by supervisors in conjunction with the human resources
department. [COMPANY] will not retaliate, discourage, or prohibit any employee, client or
visitor from reporting violations of this policy.
IV. TOBACCO CESSATION OPPORTUNITIES
[COMPANY] encourages all employees who currently use tobacco products to quit by
taking advantage of cessation programs available through the company. More information about
these offerings can be obtained by contacting [APPROPRIATE WORKPLACE CONTACT] or
human resources.
V. QUESTIONS
Any questions regarding this policy should be directed to [NAME OF APPROPRIATE
WORKPLACE CONTACT] at [NUMBER].
Thank you for your cooperation.
Recommendation #3: Add A Summary of Employer Authority to Ban E-Cigarettes in the
Workplace.
While the CIB discusses the use of Electronic Nicotine Delivery Systems (ENDS) in a variety of
places, the document should also include a reminder that employers have the authority to ban
those devices, including e-cigarettes, in the workplace. On page 20, line 20, the preceding
paragraph already addresses laws prohibiting use of ENDS. Additional language should be added
that states:
―The same legal reasoning that applies to private employers banning other types of tobacco use
in the workplace would apply to banning ENDS. Private employers may set reasonable
restrictions on employees’ activities that do not discriminate on the basis of a legally protected
status, such as race or gender.17 Being a smoker is not a protected status. Just as companies may
limit access to certain websites or curtail the use of cell phones in the workplace, companies
have the right to limit or prohibit use of e-cigarettes in the workplace.18 The international
community has already expressed concerns about e-cigarettes in the workplace, and some
American companies have also taken notice. For example, the U.S. Air Force implemented an ecigarette ban in their facilities in light of concerns that some of the products contain and emit
toxic chemicals.19 Some companies, such as Exxon Mobil, allow the use of ENDS in designated
areas where smoking is already allowed while others, such as Starbucks and CVS, have banned
the use of ENDS inside all stores.20 The most efficient approach is for employers to simply add
ENDS to the list of products covered by their current tobacco-free or smoke-free workplace
policy.‖
17
Reggie Gay, Banning Electronic Cigarettes in the Workplace, South Carolina Employment Law Letter, (Sep. 11,
2013).
18
Id. at 2.
19
Celia Joseph, E-Cigarettes: An Issue for Employers Worldwide, Fisher and Phillips, (Jan. 19, 2011),
http://www.crossborderemployer.com/post/2011/01/19/E-Cigarettes-An-Issue-for-Employers-Worldwide.aspx.
20
Lauren Weber & Mike Esterl, E-Cigarettes Spark Dilemma for Employers, WALL ST. J., (Jan. 15, 2014),
http://online.wsj.com/news/articles/SB10001424052702303819704579320902677845732
4
Recommendation #4: Clarify Employee Rights and Employer Liabilities
The CIB should explain in detail employee rights to be free from, and employer liability for
exposure to, secondhand smoke in the workplace. On page 16, following the mention of OSHA
liability, the following sub-section should be inserted after line 2:
Employer Liability for Secondhand Smoke Exposure
In addition to possible consequences under OSHA, an employer may also face liability in several
other ways. For instance, an employee’s right to be free from secondhand smoke in the
workplace may arise from a state or local jurisdiction’s smoke-free workplace law. Employees
may also bring several other claims in the absence of or in addition to a smoke-free workplace
provision. These include claims under state workers’ compensation laws, federal or state
disability laws, and the common law.21
First, an employee may file a workers’ compensation claim against an employer for illness or
injury attributable to secondhand smoke exposure in the workplace.22 By compensating workers
for medical expenses and lost income without requiring proof of the employer’s negligence,
workers’ compensation laws protect employees from any illness and injury arising out of the
course of employment.23 Claims arising out of asthmatic or allergic reactions to secondhand
smoke as well as prolonged exposure to secondhand smoke are often successful.24 For example,
the New York Workers’ Compensation Board awarded benefits to an employee who suffered
two major asthma attacks at her workplace—a crowded office of smokers in a building without
ventilation25—reasoning that the employee had sustained an occupational injury as a result of
repeated exposure to secondhand smoke.26 In another case, a workers’ compensation judge
concluded that the employer of a plaintiff who contracted tonsil cancer after sharing an office
with a smoking coworker for 26 years was liable for any past and future medical expenses
associated with the illness.27
In addition, an employee who is considered ―disabled‖ under state or federal law may file a
disability discrimination claim if exposure to secondhand smoke exacerbates that disability, and
the employer fails to provide ―reasonable accommodation‖ to protect the employee from
secondhand smoke exposure. Courts have found that exposure to secondhand smoke itself can
cause an employee to be considered ―disabled‖ under the Americans with Disability Act
(ADA)28 or the Rehabilitation Act of 197329 ―if secondhand smoke substantially impairs the
employee’s ability to breathe, and the impairment occurs both in and out of the workplace.‖30 An
21
Zellers, supra note 11, at 1377.
Id.
23
Id.
24
Id. at 1378.
25
Johannesen v. Dep’t. of Housing Preservation and Dev., 638 N.E.2d 981, 982 (N.Y. 1994).
26
Id.; see also Schober v. Mountain Bell Telephone, 600 P.2d 283 (N.M. 1978) (finding that exposure to
secondhand smoke at work which caused the employee to have an allergic reaction and collapse constituted an
accidental injury).
27
Magaw v. Bd. of Educ., 731 A.2d 1196 (N.J. Superior Ct. App. Div. 1999).
28
42 U.S.C. §§12101–12213.
29
29 U.S.C. §§ 701–796.
30
Zellers, supra note 12 at 1378.
22
5
employer that does not attempt to alleviate the employee’s exposure to secondhand smoke may
be held liable for failing to provide reasonable accommodations.31 For example, a California
court considered whether an employee could be ―disabled‖ under the ADA as a result of
secondhand smoke exposure where the employee claimed he suffered severe asthma attacks from
working in locomotive cabs in which his coworkers were allowed to smoke.32 The court rejected
the employer’s argument that the employee should not be considered ―disabled‖ because the
asthma attacks were temporary and not sufficiently severe, and also rejected the argument that
the employer had provided a ―reasonable accommodation‖ by preventing anyone from smoking
in the employee’s presence.33 Focusing on the employee’s evidence that he suffered severe,
life-threatening asthma attacks, as well as on the employer’s failure to protect the employee from
secondhand smoke, the court denied the employer’s motion for summary judgment on the
disability discrimination claim.34
Finally, employers may be held liable for employees’ exposure to secondhand smoke under a
common law duty to provide employees with a reasonably safe work environment.35 The Sixth
Circuit has acknowledged that in some circumstances, an employer breaches this common law
duty when it refuses to provide a smoke-free work environment.36 The court found that the
plaintiff’s employer could be held liable for the plaintiff’s asthma attacks induced by secondhand
smoke, reasoning that the employer was aware that the employee was exposed to secondhand
smoke on a daily basis, that this exposure triggered his asthma attacks, and that the secondhand
smoke exposure negatively impacted the health of all nonsmoking employees.37 Consistent with
the Sixth Circuit’s holding, case law generally indicates that an employer may be liable for
failing to take reasonable measures to control secondhand smoke despite having the means to do
so and despite an awareness that secondhand smoke was harmful to an employee.38 Any
plaintiff bringing a common law claim will have a strong argument that an employer was aware
of the harmful effects of secondhand smoke exposure, given the decades of research on the
harmful effects of secondhand smoke in the workplace and its potential to cause heart disease
and lung cancer in nonsmoking employees.39
Thus, employers face extensive liability risk for exposing employees to secondhand smoke.
Adopting smoke-free workplace policies would protect employers from liability, and provide
employees with a safe workplace.
31
Id.
Service v. Union Pacific R.R. Co., 153 F.Supp.2d 1187 (E.D. Cal. 2001).
33
Id. at 1192–93.
34
Id. at 1193.
35
Zellers, supra note 11 at 1380.
36
Wilhelm v. CSX Transp., Inc., 65 Fed.Appx. 973, 978 (6th Cir. 2003).
37
Id. at 978.
38
Id.; see also McCarthy v. Dept. of Soc. & Health Servs., 759 P.2d 351 (Wa. 1988) (court explicitly held that an
employer’s common law duty includes the duty to provide a working environment reasonably free from tobacco
smoke); Smith v. W. Elec. Co., 643 S.W.2d 10, 37 (Mo. Ct. App. 1982) (employer breached duty to provide a
reasonably safe workplace because employer knew that tobacco smoke was harmful to employees, and had
authority, ability, and reasonable means to control smoke exposure).
39
Id. at 1376, 1380; see also U.S. Dep’t of Health and Hum. Servs., The Health Consequences of Involuntary
Exposure to Tobacco Smoke: A Report of the Surgeon General (2006).
32
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Kathleen Susan Hoke, JD
Director, Legal Resource Center for Public Health Policy
University of Maryland Carey School of Law
500 W. Baltimore Street
Baltimore, MD 21201
(410) 706-1294
[email protected]
*This comment was prepared with assistance of the Center’s Fellow, Sasika Subramaniam, and law students
Katherine O’Konski and Alexandria Moore
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