Employment & Labor Law for Public Safety Agencies

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Smoking Rights/Restrictions & Air Quality

     Pennsylvania Supreme Court holds that a municipal employer must bargain with its police labor organization over a ban on the use of tobacco products in the workplace and in municipal vehicles. “While local legislation which promotes clean air and warns of the risks of tobacco use may be laudatory, it may not serve as a barrier to negotiations over this topic when it constitutes a working condition subject to mandatory bargaining.” Bor. of Ellwood City v. Pa. Labor Rels. Bd., #44 WAP 2008, 2010 Pa. Lexis 1532.
     Arbitrator finds that an existing bargaining agreement allowing smoking areas in fire stations supersedes a new city-county ordinance banning indoor smoking in the workplace. Unif. Govt. Wyandotte Co. Kansas City Fire Dept. and IAFF L-64, 126 LA (BNA) 609 (Berger, 2009).
     GSA tightens its smoking ban in federal facilities; the ban encompasses all interior space owned, rented or leased by the executive branch, smoking in courtyards and within 25 feet of doorways or air-intake ducts in the outdoors. Previously designated interior smoking areas are to be closed during a six-month phase-in period. Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace, 73 (246) Federal Register 78360-61, Doc. E8-30377 (12/22/2008).
     Appellate panel rejects a suit by an asthmatic corrections officer who sought a smoke free work environment. "The evidence establishes, and the DOC does not dispute, that [her] asthma was a physical impairment" but she "has not presented significant probative evidence that her impairment substantially limited a major life activity, thereby becoming a disability." Lord v. Ariz. Dept. of Corr., #06-15875, 2008 U.S. App. Lexis 14432 (Unpub. 9th Cir.).
     Appellate court confirms the right of a Pennsylvania municipality to adopt an ordinance that bans smoking in public buildings, overturning a Labor Board ruling that required the city to recognize a past practice. The ordinance did not prohibit employees from using tobacco while on duty; it only established that specific locations were smoke free. Bor. of Ellwood City v. Penna. Labor Rel. Bd., #473 C.D. 2007, 2008 Pa. Commw. Lexis 26.
     Federal prison guards lose claims for hazard duty pay arising from their exposure to inmate tobacco smoke. Adair v. U.S., #2006-5077, 2007 U.S. App. Lexis 18055 (Fed. Cir. 2007) affirming 70 Fed. Cl. 65.
     Federal court declines to dismiss an ADA suit brought by a former police officer who had a severe allergy to tobacco smoke. City made no effort to implement a no-smoking policy with the police union. Thursby v. City of Scranton, #3:CV-02-2355, 2006 U.S. Dist. Lexis 33475, 18 AD Cases (BNA) 21 (M.D. Penn. 2006). [2006 FP Oct]
     A federal court has dismissed a lawsuit filed by Federal Bureau of Prisons employees seeking hazardous duty pay for exposure to secondhand cigarette smoke at the Federal Correctional Institute in Jesup, Ga. Adair v. United States, #05-392-C, 2006 U.S. Claims Lexis 49 (Fed. Cl. 2/28/06). {N/R}
     The California Environmental Protection Agency's Air Resources Board has formally designated environmental tobacco smoke (second-hand smoke) as a "Toxic Air Contaminant" that may cause or contribute to death or serious illness. Action to amend Titles 17 & 26, Calif. Code of Regulations §93000 (2006). {N/R}
     Federal court rejects a suit filed by a corrections officer that became ill from cigarette smoke. Her condition did not limit her general ability to breathe or work. Vinson v. NYC Dept. of Corrections, # CV-01-6900, 2006 U.S. Dist. Lexis 3943 (E.D.N.Y. 2006). [2006 FP Apr]
     The GSA has asked all federal agencies to prohibit the use of tobacco products within any vehicles owned or leased by the government. GSA has banned tobacco in fleet vehicles controlled by GSA since 1993. The ban was expanded on the recommendation of the Federal Fleet Policy Council. GSA Motor Vehicle Management Bulletin, 67 (72) Fed. Reg. 18205 ( 4/15/02). [N/R]
     Federal panel overturns a ban on the use of smokeless tobacco in the workplace. Tobacco chewers would have to go to designated smoking areas and would be exposed to secondary smoke. Dept. of Air Force, Dover, Del. and L-1709 AFGE, Decis. #424, 99 FSIP 88, 1999 FSIP Lexis 31. [2000 FP 60]
     Arbitrator upholds an employer's premises-wide ban on tobacco use; the policy promotes better health and reduces costs. Plasti-Line and Sheet Metal Workers, 114 LA (BNA) 1240 (Mancini, 2000). {N/R}
     New York will ban smoking inside its state prisons, effective 1/1/2001. Officials worried about lawsuits for ETS based on Helling v. McKinney, 113 S.Ct. 2475 (1993). Also see law review article on suits by inmates for ETS at 25 Seton Hall L. Rev. 314 (1994). [1999 FP 139]
     Massachusetts Supreme Court upholds a state law prohibiting the hiring or continued employment of police officers and firefighters hired after 1-1-1988 who smoke tobacco products; G.L.M. Ch. 22C, Sec. 10. Plymouth (Town of) and Civ. Serv. Cmsn., 686 N.E.2d 188 (Mass. 1997). {N/R}
     Asthmatic NY corrections officer, who was terminated because of his reaction to prison smoke is ordered reinstated. The jury verdict of $420,300 is reduced to $300,000 plus back pay. Muller v. Costello, #94-CV-842, 1998 U.S.Dist. Lexis 3469 (N.D.N.Y.), affirmed at 1999 U.S. App. Lexis 18651 (2nd Cir.). [1998 FP 14, 78 and 1999 FP 156]
     Arbitrator upholds an employer's unilateral imposition of a premises smoking ban for reasons of health and safety. Mutual Mfg. and Teamsters L-100, 109 LA (BNA) 570 (High, 1997). [1998 FP 27]
     An employer violated Sec. 8(a)(5) of the N.L.R.A. by unilaterally prohibiting on-premises smoking. Dynatron/Bondo Corp. and U.N.I.T.E. (AFL-CIO), 1997 NLRB Lexis 560, 155 LRRM (BNA) 1225. [1998 FP 27]
     Employment Relations judge holds that the N.Y. Public Health Law does not preempt an employer's duty to bargain a smoking ban in all city buildings and vehicles. The ban clearly exceeded requirements of the N.Y. Public Health Law and was mandatorily negotiable. Buffalo PBA & FFA v. Buffalo, 29 NYPER (LRP) ¶ 4589, 1996 NYPER (LRP) Lexis 1071 (1996). [1998 FP 28]
     A county committed an unfair labor practice by unilaterally implementing a total no-smoking policy in the county jail; the county failed to demonstrate that a smoking ban was essential to the facility's basic mission. Crawford Co. v. Penn. Lab. Rel. Bd., 659 A.2d 1078; 1995 Pa. Commw. Lexis 256; Review denied, 543 Pa. 482 (Pa. 1996). [1998 FP 28]
     A county violated its bargaining obligation by unilaterally issuing a directive banning police detectives from smoking at their desks. Lebanon Co. Det. Assn. v. Leb. Co., 27 PPER (LRP) ¶ 27,260, 1996 PPER (LRP) Lexis 221. [1998 FP 28]
     An arbitrator held that the employer could unilaterally implement a new, more restrictive smoking policy, despite a long standing company practice to the contrary. ITT Higbie and UAAIW L-1686, 105 LA (BNA) 1084 (Florman, 1996). [1998 FP 29]
     Smoking in an industrial establishment is neither a contractual right nor a working condition, but is a privilege which may or may not be granted by the employer. Timkin Co. and Un. Stlwrkrs. L-1123, 108 LA (BNA) 422 (Kindig, 1966). [1998 FP 29-30]
     President designates nonresidential federal buildings as "no smoking" areas. Protecting federal employees and the public from exposure to tobacco smoke in the federal workplace, Executive Order 13058, 62 (156) Fed. Reg. 43449-52 (8-13-1997) I/Net: [1997 FP 156]
     EEOC concludes - citing 29 C.F.R. 1614.203(c)(1) - that "migraine" headaches that are caused or aggravated by sensitivity to tobacco smoke are a "disability" under the ADA, which the employer must reasonably accommodate , if they are severe and frequent. McNeil v. Runyon, #01945685, 1996 EEOPUB Lexis 202. [1997 FP 157]
     Asthmatic corrections officer who was sensitive to secondhand tobacco smoke was entitled to assert an ADA claim. Muller v. Costello, 5 AD Cases (BNA) 779, 1996 U.S.Dist. Lexis 5239 (N.D.N.Y.). {Note: See later opinion at 997 F. Supp. 299, 1998 U.S. Dist. Lexis 3469} [1996 FP 140]
     Employer was not required to bargain over elimination of a smoking area, when redesignated to protect a sick employee. Dept. of Air Force, Scott A.F.B. and Natl. Assn. Govt. Emp., 51 FLRA #72 (1996). [1996 FP 77-8]
     California appeals panel rejects a civil rights suit challenging public smoking areas. Court declines to hold that nonsmokers have a protected "lifestyle". King v. Hofer, 1996 Cal.App. Lexis 111, 42 Cal.App.4th 678, 49 Cal.Rptr.2d 719. [1996 FP 62]
     Article: "Occupational exposure to environmental tobacco smoke [1996 FP ETS]," 274 (12) JAMA 956-60 (9/27/95). Amer. Medical Assn., (800) 262-2350. Various worksites including fire stations and offices were used to measure ETS. Using three different evaluation methods, all indicated that exposure to ETS "presents a substantial risk to workers in the absence of a policy restricting or banning smoking." {N/R}
     Employer was not required to ban workplace smoking to accommodate an asthmatic employee. Hall v. Hackley Hosp., 532 N.W.2d 893 (Mich.App. 1995). {N/R}
     Federal appeals circuit allows smoke-sensitive patrons to sue fast food restaurants for injunction against smoking. Reversing a lower court, the panel said the plaintiffs had a right to prove that a total ban on indoor smoking was mandated under the reasonable modification clause of ADA Sec. 12182(a). Staron v. McDonald's Corp., 51 F.3d 353, 4 AD Cases (BNA) 355 (2nd Cir. 1995), reversing 872 F.Supp. 1092 (D.Conn. 1994). {N/R}
     Employer's policy prohibiting smoking within 50 ft. of any building entrance is reasonable to protect health of employees. Cummins Engine and Office Comm. Union, 104 L.A. 522 (Goldman, 1995). {N/R}
     Florida Supreme Court upholds right of government employers to refuse to hire smokers. ACLU's privacy concerns rejected. North Miami (City of) v. Kurtz, 653 So.2d 1025, 10 IER Cases (BNA) 865 (Fla. 1995); 625 So.2d 899 reversed; cert. den. 116 S.Ct. 701. [1995 FP 108-9; 1994 FP 28-9]
     California arbitrator upholds an employer's total ban on smoking, in and out-of-doors; not a contract violation. Norris and United AA&AW L-509, 104 LA (BNA) 174 (Richman, 1995). [1995 FP 109]
     Federal Impasses Panel imposes an indoor no-smoking ban, but requires employer to furnish an on-duty smoking cessation course. Dept. of the Navy and L-2326 AFGE, 94 FSIP 148, 1994 FSIP Lexis 30. [1995 FP 45]
     A state employee's sole remedy for her termination for absenteeism, caused by her allergy to a coworker's pipe smoke, is to file a worker's comp. claim. Her allergy is not a "handicap" under the Georgia code. Hennly v. Richardson, 444 S.E.2d 317 (Ga. 1994). {N/R}
     Arbitrator holds that employer's duty to provide a healthy and safe workplace did not allow the unilateral adoption of a no-smoking policy. Raybestos and Local 164 ALIWA, 102 LA (BNA) 46 (1993). [1994 FP 141-2]
     Employer violated the employment agreement when it unilaterally prohibited workplace smoking, notwithstanding EPA finding that ETS is a carcinogen. Lincoln Brass and AC&TWU L-2578, 102 LA (BNA) 872 (Haskew, 1994). {N/R}
     NY rules that a smoking ban may not be imposed an union employees without bargaining the work rule change with the union. Newark Valley C.S.D. v. Public Empl. Rel., 83 N.Y.2d 315, 632 N.E.2d 443, 1994 N.Y. Lexis 281, 1994 WL 94208. [1994 FP 125]
     Federal appeals court refuses to require a smokefree workplace under the 1973 Rehabilitation Act. Gupton v. Comm. of Virginia, 14 F.3d 203 (4th Cir. 1994); cert. denied, #93-1802. [1994 FP 108]
     U.S. District Court finds that an employee with hypersensitivity to tobacco smoke was entitled to a smoke-free workplace. Since then, the Ninth and other federal circuits have adopted the "general employability test" to determine whether the disability substantially limits one's ability to work. Vickers v. Veterans Admin., 549 F.Supp. 85 (W.D.Wash. (1982). [1994 FP 108]
     Supreme Court allows inmate's suit against correction officials for passive inhaling of tobacco smoke. Helling v. McKinney, 113 S.Ct. 2475 (1993). [1994 FP 13]
     Employer was not required under A.D.A. to ban worksite smoking to accommodate employee with asthma. Harmer v. Virginia E&P, 2 AD Cases (BNA) 1289 (E.D. Va. 1993). [1994 FP 13]
     The county could unilaterally impose a ban on smoking, without bargaining with the union, in those office buildings where it was impossible for smoking and smoke-free areas to coexist. The total ban was required by the Clean Indoor Air Act. In re County of Cayuga, 16 NPER NY-14597 (N.Y. PERB 1993). {N/R}
     Because an antiquated jail facility's structural characteristics caused poor ventilation and affected fire safety, a total ban on smoking in the jail could be unilaterally imposed by management, without resorting to the bargaining process with the union. In re Crawford County, 16 NPER PA-24130 (Pa.Lab.Rel.Bd. 1993). {N/R}
     Legionnaire's Disease is not an occupational illness under Pennsylvania law. May Dept. Stores v. Workmen’s Comp. App. Bd., 525 A.2d 33 (Pa.Cmwlth. 1987). {N/R}
     Environmental tobacco smoke is not an occupational disease under the Nevada law. Palmer v. Webb's High Sierra, 838 P.2d 435 (Nev. 1992). {N/R}
     Ohio bans smoking in state cars and buildings. Exec. Order 93-01V; also see FEP Manual (BNA) 451:111-112. [1993 FP 46]
     California appellate court holds that a county had a duty to accommodate employees with hypersensitivity to tobacco smoke; state Attorney General rules that government entities may prohibit smoking in public buildings. County of Fresno v. Fair Employment & Hous. Cmsn., 226 Cal.App.3d 1541, 277 Cal.Rptr. 557 (1991). [1992 FP 27-8]
     California Attorney General has ruled no-smoking in public buildings ordinances are legal. Atty. Gen. Opin. 12/5/91, 91 DAR 15490. [1992 FP 28]
     In 1991, 13 states adopted "Smoker's Rights" laws preventing employers from denying employment to off-premises tobacco users. See also: Seattle Police Officers Guild v. City of Seattle, 90-1 F&PPR 12 (Jan. 1990). [1992 FP 108-9]
     Washington State Employment Relations Commission rules that cities must bargain with unions before unilaterally adopting an on-the-job prohibition of tobacco smoking. Seattle Police Officers Guild et al and City of Seattle, PERC #6674-U-86-1337, -1351, -1359, and -1368, 27 G.E.R.R. (BNA) 1538 (1989).
     Aggravation of eye disorder from exposure to cigarette smoking of others was not an occupational disease of social worker. Mack v. County of Rockland, 71 N.Y.2d 1008, 525 N.E.2d 744 (1988).
     Prisoner can file federal civil rights lawsuit over failure of prison to provide him a tobacco-smoke-free environment. Beeson v. Johnson, 668 F.Supp. 498 (E.D.N.C. 1987).
     New York appellate court finds that public health council usurped legislative authority in issuing indoor smoking restrictions. Boreali v. Axelrod, 518 N.Y.S.2d 440 (A.D. 1987).
     Employee properly denied unemployment compensation benefits when she stopped coming to work because of presence of tobacco; employer tried in good faith to provide smoke-free environment. Tuma v. Omaha Public Power Dist., 226 Neb. 19, 409 N.W.2d 306 (1987).
     Federal appeals court upholds termination of firefighter for smoking; city had a policy of not hiring smokers. Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987).
     City's policy of refusing to hire tobacco users for firefighting positions upheld; must bargain with union over fitness standards. International Association of Fire fighters Local 101 v. City of Duluth, St. Louis County District Court, #8720508, June 19, 1987.
     South Dakota law prohibits must smoking in medical facilities, schools and other public facilities. S.D. Codified Laws Ann. Sec. 22-36-2.
     New York court halts implementation of workplace no-smoking rules; federal dept. of health and human services prohibits smoking throughout its buildings; health groups petition for nationwide on-the-job smoking ban. New York Times, page 14, May 7, 1987.
     Smoking restricted in Massachusetts state buildings; ban soon to extend to employees" private offices and state vehicles. 25 (1204) Govt. Emp. Rel. Rep. (BNA) 421 (3/23/87).
     Wisconsin appellate court upholds total ban on smoking in work areas of state buildings; equal protection and breach of employment contract arguments rejected. Rossie v. State Dept. of Revenue, 395 N.W.2d 801 (Wis. App. 1986).
     Worker, sensitive to tobacco smoke, entitled to disability benefits or smokeless workplace; congress, G.S.A., pentagon, states and cities look to new regulations. Parodi v. Merit Systems Protection Board, 690 F.2d 731 (9th Cir. 1983).
     California firefighters sue over smoking ban; prohibition also applies to off-duty tobacco use; temporary injunction ordered. San Mateo Firefighters Local 2400 IAFF v. City of San Mateo, Sup'r Ct. #268890. Note: The court rules that the new policy was illegally adopted in violation of the M-M-B Act which requires public employers to "meet and confer" over matters subject to collective bargaining. The city amended its policy and the suit was dropped. Firefighter applicants must state that they have not smoked cigarettes for one year prior to the application date. No disciplinary action is taken if they later become smokers.
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