An important paper published in the American Journal of Public Health (August 2007) outlines the legal risks that employers are taking by allowing smoking in the workplace. The risks are great, including lawsuits based on workers compensation, state and federal disability law, and the duty to provide a safe workplace.

Leslie Zellers, JD, the primary author, quotes several legal cases which set the precedent for employees to sue for damages. The evidence that secondhand smoke is a major cause of illness has been mounting for several years. The 2006 Surgeon General’s Report adds the final touch of credibility and organizes the entire body of evidence into a single document.

Here are the key issues brought forth in the article:

The EPA (Environmental Protection Agency) has classified secondhand smoke as a group A carcinogen (most dangerous classification). Coupled with the warning in the Surgeon General’s Report that “there is no safe level of exposure to secondhand smoke”, the scientific evidence that secondhand smoke causes harm to workers is rock solid.

Employers have the Means to Correct the Damages
Other scientific studies have shown that workers’ respiratory health immediately improves when secondhand smoke is eliminated from the work environment. This is important because it proves that employers have the ability to correct the cause and thereby prevent the damage. By not doing so, they put themselves at great liability.

Employees have 3 Options for Remediation
Employers are particularly vulnerable to claims from their employees if they do not provide a smoke-free workplace. Workers have 3 options for remediation, with varying consequences for the employer:

…an employee can file a workers’ compensation claim for illness caused by secondhand smoke. This may increase the employer’s premiums for workers’ compensation. Conversely, many states give a premium discount to employers who implement safety policies, including providing a smoke-free workplace.

…an employee can file a disability discrimination claim, for failure to provide reasonable accommodation for a disability, such as asthma, which is brought on by secondhand smoke. In cases where employers are found to violate provisions of the ADA (Americans with Disabilities Act), a disabled employee may seek monetary damages, a court order to prevent further harm, and repayment of attorneys’ fees.

…an employee could file a claim that the employer failed to provide a safe workplace, resulting in illness or injury, such as lung cancer. This could result in huge lawsuit damages depending on the extent of injuries incurred, or loss of life.

Some employers have tried to argue that providing a smoke-free workplace would constitute an “undue hardship”. However, it has been very well proven that businesses that are smoke-free enjoy many other benefits, and do not incur loss of revenue, even in the bar and restaurant industry. Therefore, "undue hardship" arguments have not held up in court.

Don't Make a Costly Mistake
As more litigators become aware of the huge potential for lawsuits in this area, the chances of an employer getting sued increases almost daily. Putting off the decision to go smoke-free could be a very costly mistake.