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Issue Paper Smoking in the Workplace

Date: Mar 1983
Length: 121 pages
03556033-03556153
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Area
JUDGE/SECRETARY CAROL GILBERT'S FILES
Type
REPT, OTHER REPORT
Alias
03556033/03556153
Site
N13
Request
R1-004
R1-037
R1-073
R1-129
Named Person
Aviodo, D.
Froeb, H.F.
Knoebel, S.B.
Langston, H.T.
Lebowitz, M.D.
Moser, K.
Solmon, L.C.
Weis, W.
White, J.R.
Document File
03555991/03556153/TI Smoking in the Workplace Issue Paper Annoted Bibliography
Date Loaded
05 Jun 1998
Named Organization
Business Week
Harvard Medical School
in Univ
New England Journal of Medicine
Northwestern Univ
Personnel Administrator
Seattle Univ
Supervisory Management
Ucla
Univ of Az
Univ of Ca San Diego
Univ of Pa
Wall Street Journal
American Lung Assn
Litigation
Stmn/Produced
Author (Organization)
TI, Tobacco Inst
Characteristic
PARE, PARENT
Master ID
03555991/6153

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Issue Paper Smoking in the Workplace THE TOBACCO INSTITUTE MARCH 1983 c y
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TABLE OF CONTENTS INTRODUC TION ................ EXECUTIVE SUMMARY ... .................. ............................ BACKGROUND ....................... The Issue ........................ Antismokers Have Defined and Controlled the Issue The Tobacco Industry's Response . . . . . . THE ECONOMIC ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . Audience . . . . . . . . . . . . . . . . . . . . . . Antismokers . . . . . . . . . . . . . . . . . . The Tobacco Industry . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . THE SOCIOLOGICAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . Audience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . Antisrnokers . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . The Tobacco Industry . . . . . . . . . . . . . . . . ... . . . . . . . . . . . ... THE HEALTH ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Audience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Antismokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Tobacco Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . APPENDICES Appendix A: New Jersey Senate Bill No. 675 Appendix B: Kelliher, E.V., "Fewer Workers Now Are Singing 'Smoke Gets in Your Eyes,"' The Wall Street Journal, Nov. 7, 1981. Appendix C: Smokin and the Workplace - A National Survey, National Interagency Council on Smo king and Health (1979). Appendix D: "Office Smokers Feel The Heat," Business Week, Nov. 29, 1982. Page 1 2 4 4 4 6 8 8 8 9 11 11 11 11 14 14 14 15 18
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Appendix E: Solmon, L.C., "The Other Side of the Smoking Worker Controversy,` Personnel Administrator, March 1983. Appendix F: Weis, W.L., "Can You Afford To Hire Smokers?" Personnel Administrator, May 1981. Appendix G: 1. Hicks, J.E., "Rebuttal: 'Ifs ands or butts,"' Management World, September 1981. Appendix H: 2. Weis, W.L., "No Ifs, ands or butts - Why Workplace Smoking Should Be Banned," Management World, September 1981. Weis, W.L., and Fieenor, C.P., "Cold-shouldering the Smoker," Supervisory Management, September 1981. Appendix I: "The Smoking Controversy: Institute (1978) (Excerpt). Appendix J: Appendix A Perspective," The Tobacco Blackburn, J., "Legal Aspects of Smoking in the Workplace," Labor Law Journal, September 1980. In the Matter of Warren Hills Regional Board of Education and Board of Education of the Warren Hills Regional High School District, N.J. Superior Court, Appeals Division, No. K: - A-5711-80T2, Nov. 16, 1982. Appendix L: Remarks by Representative L.H. Fountain, "White-Froeb Study Discredited by Scientists," 128 Congressional Record, December 16, 1982. Appendix M: Statement of George E. Schafer, M.D., The Tobacco Institute, Montgomery County (MD) Council Hearings of Proposed Restriction of Public and Workplace Smoking (1982).
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1( \ C INTRODUCTION This briefing paper defines and analyzes the smoking in the workplace issue for policy makers at all levels in businesses, non-profit institutions, labor unions, and public agencies. These individuals may represent personnel, benefits administration, finance, legal affairs, or general management. They will find at least one aspect of the issue - economic, sociological, or health - relevant to their policy making responsibilities. This paper is not written for the general public, or employees (smokers and nonsmokers), but certain' dimensions of the issue are important to them. This audience is discussed on page 14.
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2 EXECUTIVE SUMMARY I. The smoking in the workplace issue, an outgrowth of the broader public smoking controversy, is a debate over the rights of smoking versus nonsmoking employees. A. Tobacco industry opponents currently control the issue. A leading spokesperson is William Weis, Associate Professor of Business Administration, Seattle University. Weis' work and that of others have caused increased media coverage, more legislation, and more workplace smoking policies. Traditional antismoking groups, such as the American Lung Association, have introduced workplace smoking efforts. B. The tobacco industry is concerned with three dimensions of the issue: legislative, judicial, and voluntary. This paper deals with voluntary actions taken by employers. It concerns three arguments: economic, sociological, and health. II. The Economic Argument A. Antismokers insist that smokers are more costly to employ than nonsmokers. William Weis claims that smokers impose additional costs on business ranging from $4,611.00 to $5,610.00 per year. B. The tobacco industry disagrees and responds with two main arguments: 1. Existing evidence from Weis and others does not establish that smokers are more costly to employ than nonsmokers. o Lewis C. Solmon, Profesor of Economics, UCLA, identifies Weis' faulty analysis and conclusions. 2. Unnecessary workplace smoking policies impose costs on businesses, with no proof of future savings from the effort. III. The Sociolo .'cal Argument The root of the argument is nonsmokers' right to breathe smoke-free air versus co-workers' right to smoke. A. Antismokers call for discriminatory hiring practices and other forms of discrimination against smokers. 0355603"7 B. The tobacco industry refutes the antismoker argument from a practical and f rom a social-rights position.
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3 1. From a practical viewpoint: o Smoking in the workplace presents a potentially explosive issue which both labor and management should want to avoid; o Compared to those issues involving wages and hours, it is relatively unimportant and not worth management or labor devoting time, energy, and resources to it; o Smoking restrictions are costly to implement and enforce. 2. From a social-rights viewpoint: o Smoking restrictions are paternalistic; o Smoking restrictions represent social discrimination; o Smoking restrictions are unnecessary (employees can settle their own differences). IV. The Health Argument A. Antismokers argue that ambient smoke is an annoyance and causes disease in nonsmokers. 1. They often rely upon a highly publicized study published by Drs. White and Froeb, March 1980, New England Journal of Medicine. The study claimed that smoking in the workplace adversely affects the lung function of nonsmokers. B. The White/Froeb study and' others have not established that tobacco smoke causes disease in the nonsmoker. 1. Many scientists, physicians, and~ experts have stated that tobacco smoke has not been shown to be a health hazard to nonsmokers. 2. Nonsmokers' acceptance of the antismoker argument can be attributed to their reliance on inconclusive research, inaccurate reporting, and social influences.
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4 C BACKGROUND The Issue The smoking in the workplace issue is an outgrowth of the broader public smoking1 question. It is a debate over the rights of smoking versus nonsmoking employees. It is primarily a United States issue, but is likely to spread to other countries in a fashion similar to many tobacco-related issues. Antismokers have defined and controlled the issue. Currently, most public discussion of the issue, whether employee information, corporate programs, or print and broadcast media coverage, is controlled by persons with anti- smoking views. A primary information source is William Weis, Associate Professor of Business Administration; Seattle University. The issue gained momentum in this country beginning in 1980, with a series of publications by Weis. He claims that companies lose from $4,611.00 to $5,610.00 per smoker per year, depending upon his publication date. ` 1. Public smoking refers to nonsmokers' exposure to tobacco smoke in public places.
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5 The results of Weis' work and that of others making similar allegations have been: o Increased media coverage. A brief analysis indicates media coverage2 increased 348% from 1978 to 1982: 1978. . . . . . . 102 placements 1979. . . . . . . .121 placements 1980. . . . . . . .182 placements 1981. . . . . . . .181 placements 1982. . . . . . . .457 placements o More workplace smoking restriction bills introduced (see examples, Appendix A). o More workplace smoking policies. Although figures vary, these are representative: . in 1978 the Wall Street Journal reported that 30% of businesses had some sort of smoking policy (see Appendix B); in 1979 a national survey conducted by the National Interagency Council on Smoking and Health indicated that 49.6% of all companies surveyed had some sort of smoking policy (see Appendix C); in 1982 Business Week reported that 50% of all companies had formal smoking policies (see Appendix D). Last year, the American Lung Association (ALA) introduced smoking in the workplace efforts which included "Freedom From Smoking" self-help manuals and "Freedom From Smoking" clinics. In July 1982, ALA sponsored a seminar called "Corporate Smoking Policies - A No-Fault Approach," featuring Weis and~ other smoking opponents. Its ~ CJ tR tlt ~ O .' ~.. 2. Media coverage includes radio/TV transcripts and newspaper, magazine, and joupal publications. The analysis is not comprehensive but confirms the issue's increased publicity.
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6 purpose was to explore the economic, legal, and management implications of restricting C employees' smoking. The Tobacco Industry's Response While the industry has addressed this issue, it has not yet undertaken an organized workplace smoking program. A Weis critic and tobacco-industry consultant on the issue is Lewis C. Solmon, Professor of Economics, UCLA. Solmon's work demonstrates Weis' faulty analysis and conclusions. He has written an article which appeared in Personnel Administrator, March 1983.3 Personnel Administrator is one of the first publications in which Weis' work appeared. The tobacco industry is concerned with three dimensions of the smoking in the workplace issue: 1. Legislative actions; 2. judicial actions; and 3. voluntary actions taken by businesses and other organizations. These actions generally include restricted smoking areas and discriminatory hiring practices of United States businesses. This paper focuses upon the third~ area, voluntary actions. However, it should be useful to those concerned with the legislative and judicial areas as well. ~ 3. See Appendix E for Dr. Solmon's article.
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7 The voluntary aspect of the issue revolves around three basic arguments: ` 1. economic; 2. social; and 3. health. Each argument has sub-issues and each is related to the other. The issue, though, is best understood by analyzing it according to these three categories. The following pages discuss each argument, giving the views of the tobacco industry and its opponents. The discussion identifies those audiences likely to find each argument important. l C1t ~ N
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8 THE ECONOMIC ARGUMENT Audience The economic argument is most relevant to personnel, financial, and benefits administration managers of large companies; public agencies; and small business owners or managers. Antismokers Tobacco industry opponents argue that smokers are more costly to employ than nonsmokers. A leading spokesperson is William Weis, Associate Professor of Business Administration, University of Seattle. In his May 1981 article, "Can you afford to hire smokers?", in Personnel Administrator (see Appendix F), Weis contends that smokers impose additional costs on business in the form of: (Cost Categories) (Annual Cost Per Smoker) C . increased absenteeism . more medical care . lost earnings from increased morbidity and early mortality . increased insurance premiums . on-the-job time lost . increased property damage and depreciation $ 220.00 230.00 765.00 90.00 1,820.00 500.00 500.00 . involuntary smoking 486.00 Total cost per smoker per year $4, 611.00 . more maintenance
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9 The Tobacco Industry The industry disagrees with Weis' conclusions and responds with two arguments: 1. Existing evidence does not establish that smokers are more costly to employ than nonsmokers. Lewis C. Solmon, Professor of Economics, UCLA, refutes Weis' analysis and conclusions in his article entitled, "The Other Side of the Smoking Worker Controversy" (see Appendix E).4 He notes Weis' major flaw - the assumption that each cost category (as listed on p. 8) is affected primarily or solely by employee smoking - and identifies a variety of additional factors influencing each category. He scrutinizes other aspects of Weis' work, including: C His faulty survey methods: Weis surveyed only employers who have instituted smoking policies; his inaccurate statistical analysis and miscalculations: Weis confuses average and marginal returns in his calculations; he attributes employee costs to the employer; and he does not support a statistical association between smoking and absenteeism; his questionable data manipulation: Weis used many selective statistics. One example is his choice of an unrepresentative year to calculate the number of days smokers were absent. GJ C11 ~ O ~ ~ See also Appendix G-1, "'ftebuttal: 'Ifs, ands or butts"' for J. Everett Hicks rebuttal of Weis article (Appendix G-2), "'No ifs, ands or butts,' - why workplace smoking should be banned."
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- 10 - 2. Unnecessary workplace smoking policies impose costs on businesses, with no proof of future savings from the effort. Segregation or unnecessary smoking policies disrupt the workforce by creating an unnatural physical division of employees. This decreases productivity if: o An employee's location is determined by his or her workplace behavior - - smoking - rather than by his or her job; or o an employee must take time to walk to a designated smoking area to smoke a cigarette. Segregation or unnecessary smoking policies disrupt management. This decreases productivity if: o Management must take steps to enforce smoking restrictions; o management must devote legal resources to smoking problems; or o management must deal with new labor relations problems resulting from smoking restrictions.
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THE SOCIOLOGICAL ARGUMENT Audi ence Certain dimensions of this argument are important to organized labor, personnel, financial, and legal workplace policy makers. C Antismokers Antismokers have convinced some employers that smoking is socially unacceptable and that it calls for discriminatory hiring practices. The root of this argument is the right of nonsmokers to breathe smoke-free air and the apparent lack of co-workers' rights to smoke (see example, Appendix H, Supervisory Management, "Cold Shouldering the Smoker;" see Appendix I for further discussion of social discrimination). The apparent lack of legal recourse for smokers against this form of discrimination5 gives the social argument greater importance. The Tobacco Industry The industry refutes this argument from a practical and from a social-rights standpoint. 1. Practically speaking: a. Smoking in the workplace presents a potentially explosive issue which both management and labor should want to avoid. o In a non-union shop, the issue could provide an argument to be used in organizing; ~ 5. See. "Legal Aspects of Smoking in the Workplace," Appendix J.
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- 12 - o in an organized shop, the issue could create a hostile political environment and a division both within the union and between the union and management; and o in any contractual situation, it is a working condition that should be bargained for; it cannot be unilaterally imposed (see example, Appendix K). b. Smoking in the workplace is a relatively unimportant economic issue. During a difficult economic period, both labor and management have more important concerns. Such an issue, if introduced to the collective bargaining process, would cloud more important issues of wages and hours. c. Smoking restrictions, as discussed previously, are costly and cumbersome C to implement and enforce. 2. From a social-rights standpoint: a. Smoking restrictions are paternalistic. They represent management intrusion upon the personal lives of smokers and nonsmokers. They can reduce morale by creating divisiveness among co-wor kers. b. Smoking policies represent social discrimination, generally. Specifically, they discriminate against non-management and~ blue-collar workers, since: o A greater proportion of smokers are non-management; o restricting smoking in common work areas leaves those with private offices undisturbed; and 0355604'7 C 0 complete segregation leaves those with private offices undisturbed.
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c. Smoking restrictions are unnecessary. People can solve disagreements about smoking, as about other workplace behaviors, through cooperation and courtesy. O W ~J1 UI ~ ~
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- 14 - THE HEALTH ARGUMENT Audience This argument is most relevant to the general public, or employees (smokers and nonsmokers). Unlike that audience composed of business and labor managers, the public views smoking in the workplace largely according to the alleged health effects and/or annoyance of ambient smoke. Objective research shows an increasing percentage of nonsmokers who believe cigarette smoke is probably hazardous (from 57% in 1975 to 74% in 1982). Likewise, an increasing percentage find it annoying (from 54% in 1972 to 61% in 1982). Predictably, significantly smaller numbers of smokers hold these opinions. Majorities of smokers and nonsmokers believe there should be separate smoking sections in the workplace. However, few support a complete workplace smoking ban - an attitude which coincides with general public opposition to extremism of any kind. Antismokers Antismokers use the usual public smoking argument: ambient smoke is an annoyance and causes disease in nonsmokers. They often rely upon a highly publicized study to promote workplace smoking restrictions. Entitled, "Small Airways Dysfunction in Nonsmokers Chronically Exposed to Tobacco Smoke," the article appeared in the New England Journal of Medicine, March 1980. Its authors, Drs. White and Froeb, concluded that smoking in the workplace adversely affects the lung function of nonsmokers. C W CJ1t!t ~ O ~ C~
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- 15 - The Tobacco Industry The tobacco industry responds to the antismoker position: 1. The White - Froeb study and others concerning public smoking have not established that tobacco smoke causes disease in the nonsmoker. Many scientists, physicians, and experts have stated that tobacco smoke has not been shown to cause disease in nonsmokers. Among them is Dr. Michael D. Lebowitz, Professor of Internal Medicine, College of Medicine, University of Arizona. He states, "The results of this study cannot be used to demonstrate an effect of passive smoking on forced expiratory flows in adults exposed in the workplace." He adds that the study was "improperly designed" and that "there are problems with the whole data set and with the conclusion." (See Appendix L for Lebowitz's detailed response.) A sampling6 of other experts' comments on the public smoking issue include: o Dr. Domingo Aviado, Professor of Pharmacology, University of Pennsylvania Medical School: "on the basis of existing scientific evidence, tobacco smoke constitutes no health hazard to nonsmokers in public places." o Dr. Hiram T. Langston, thoracic surgeon and clinical Professor of Surgery at Northwestern University Medical School: "An assertion that tobacco smoke is a health hazard to the normal nonsmoker is untenable. . . the 6. See Appendix M for other experts' comments.
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regulation of public smoking, under the guise of a mandate to protect the C public health, is without scientific justification." o Dr. Suzanne B. Knoebel, Professor of Medicine at the Indiana University School of Medicine: "...there are no indications that tobacco smoke in the atmosphere either causes or accelerates cardiovascular disease in the healthy nonsmoker. Nor do available studies establish that atmospheric tobacco smoke under realistic conditions adversely affects nonsmokers with preexistent cardiovascular disease." l o Dr. Kenneth Moser, Professor of Medicine and Director of the Pulmonary Division of University Hospital, University of California, San Diego: TM. .. there is not now a sufficient body of hard facts to support the view that public smoking poses a health hazard to the lungs of the nonsmoker " 2. Despite the lack of persuasive evidence supporting antismokers' health argument, increasing numbers of nonsmokers believe smoking is hazardous to them. There are several reasons why: 1. Incomplete research findings are too often presented to the public by scientists and the media as "fact"; 2. Research which questions anti-smoking allegations is too often not publicized; and 3. At least one social anthropologist, from Harvard Medical School, believes it may be a reflection of frustration with life in general. He believes 035560511 that overcrowding, coupled with social upheaval, has made people overly C sensitive to some components of others' behavior. The visibility of smoke,
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- 17 - he believes, makes the act of smoking an obvious symbol against which to react. "To some people," he testified, "the smoker has become a ready target for general frustrations, anxiety, and discontent."7 C O C.~ ~ ~ ~ O 7. Hearings on the Effect of Smoking on Nonsmokers Before the Subcommittee on Tobacco of the House Committee on Agriculture, 95th Cong., 2nd Sess. 58 Serial No. 95-000, 1978 (Testimony o Sherwin Feinhandler, Ph6D.).
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- 18 - CONCLUSION Smoking in the workplace is a growing issue which demands the attention of the tobacco industry and non-industry workplace policy makers. Unfair workplace smoking restrictions: o have no economic or scientific justification; o create unnecessary labor/management issues; and o are costly and difficult to enforce. The business community and legislatures must recognize antismokers' weak claims on this issue and avoid unnecessary and unfair workplace smoking restrictions.
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03556054 I L
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t SENATE, No. 675 STATE OF NEW JERSEY PRE-FILED FOR INTRODUCTION IN TIIF 1952 SESSION By Senator GI{AVES AN 9cr controlling smoking in places of employment and supplp- menting Chapter 30 of Title 26 of the Revised Statutes. I 1 Bz rr E.-racnn by the Senate and GeneraLlssembiy of the State 2 of New Jersey: 1 L•The Legislature finds and declares that the resolution of the 2 con#iict between the right of the smoker t'o smoke and the right of 3 the nonsmoker to breathe clear air involves a determination of 4 when and where, rather than whether, a smoker may legally smol:e. 5 It is uot the public policy of this State t'o deny anyone the right to 6 smoke. However, the Legislature finds that in those places of em- T ployment affected by this act the right of the nonsmoker to breathe 8 clean air should supersede the right of the smoker to smoke. In 9 additiou to the deleterious effects upon smokers, tobacco saioke is 10 (1) at least an annoyance and a nuisance to a substantial percentage 11 of the nonsmoking public, and (2) a substantinl health ha:ard to a 12 smaller segment of the nonsmoking public. The purpose of this 13 act, therefore, is to control smoking in places of employment, 14 except in designated areas. 1 2As nsed in this act: 2 a. °Ernployer" means the proprietor, regardless of whether he is 3 the owner or lessee of the place of employment, or his authorized 4 agent, who ultimately controls, governs or directs the activities and 5 conduct in thu pUice of employment. The term "employer" means a 6 corporation as well as an individuaL 7 b. "Place of employasent" means strnctnrally enclosed location S or portion thereof which is not usually frequented by the public at 9 which more than 50 or more individuals perform any type of service 10 or labor for consideration of payment under any tryve of employ- 11 ment' relationship with or for a private corporation, partnership or .12 individuaL ~ 13 c. "Smolcng„ means the burning of a lighted cigar, cigarette, 14 pipe or any other mattar or substaace which contains cobacea
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r 2 1 3. Every employer shall establish written rules governing suiol•- 2 ing in that portion of a building for wluclt lie is responsible. The 3 rules shall coutain a written policy nud procedure to protect the 4 health, welfare ;uid comfort of employees from the detrimental 5 effects of tobacco snioke, which policy shall include designated 6 nonsmoking areas but may include designated smoking areas, 7 miless o,therwise prohiliited by tuuiiicipul ord'uiunce uulor au- 8 thority of R. S. 40:di1--1 and 40:4fi-2 or other statute or regulation 9 adopted pursuant to law for purposes of protecting life and prop- 10 erty from flre. Yothiug in this act shull prevent any rule, policy or 11 procedure concerning srnokino, which is not contrary to the pro- 12 visions of this act, from being established by the employer or 13 negotiated as a term or condition of any agreement or contract of 14 employment Employees shull' be provided with a copy of the 15 writtea rules upon reqnest: 1 4. a. The State or any agency or political subdivision thereof 2 may sugoest guideliues for rules governing smoking in places of 3 employment which magr, be adopted by employers, but in no case 4 shalL they be u3andatory. 5 b. The provisions of this act shall supersede any other statute, 6 municipal ordiuance, and rule or re;ulatiou adopted pursuant to 7 law concernino smoldno in places of employment except whero 8 smoking is prohibited byy municipal ordiuauce under authority of 9 h:. S. 40:1,8-1 and 40:#8--2 or other statute or regulation adopted 10 pursuant to law for purposes of protectuig lifa and property from 11 fire. 1 5. Every area in a place of employment where smoking is pro- ' 2 hibited or specifically permitted shall be so designated by the em- 3 ployer with a sign containing lettering not less than 2 inches in 4 height contrasting in color with the si;n an& stating either `°Sniod- 5 in.- Permitted" or "SnioL•in.- Prohibited: Violators Subject to 6 Fine." Every sign shall be located so as to be clearly visible to 7 employees. 1 6. a. The employer or any agent thereof or a police officer or 2 other public servant engnged' in executing or enforcina this act 3 may order any person smoking in violation of this act to comply 4 with the provisions of this act. Thereupon any such person who 5 smokes in a place of employment in violation of this act is subject 6 to a Hne not to exceed $100.00. 7 b. The State Department of Health or the local boord of health 8 or such board, body or officers exercising the functions of the local 9 board of health according to law, having reason to suspect that any 10 place of employment is or may be in violation of -the provisions of
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I 3 U this nct shull, by written nutificutiun, advise the empfuyer thereof 12 accordiugly and order appropriate action to be taken. Thereupou, 13 any employer or person receiving suc11 notiee who 1,11owingly fails 14 or refuses to comply with tlie order is subject to a fine not to exceed 15 $25.00 for the first offense and not to exceed $100.00 fur the second 16 offense aud not to exceed $200.00 for each offense theraufter. In 17 addition to the penalty provided herein, the court muy order ini- 18 tnediate compliance with the provisions of this act. 19 c. Any penulty recovered under the provisions of this ucG yliull be 20 recovered by andiu the nasue of the Conuuissioner of lleultu of the 21 State of New Jersey or by and in the narue of' the local board of 22 health. Wlien the plaintiff is the Couuuissioner of lieulth, the 23 24 25 26 : 27 28 29 30 31 32 33 34 35 penalty recovered shal be paid by the commissioner into the treasury of the State. \'1'hen the plaintiff is a local board of health, the penalty recovered shall be paid by the local board into the treasury of the municipality where the violutio« occurred. 1 7. No employer or any agent thereof shall be subject to any d:~ Every municipal court shall have jurisdiction over proceed- ings to enforce and eollect any penalty imposed because of a viola- tiou of any provision of this act, if the violution has occurred withiu the territorial jurisdiction of the court. The proceediu%s shull be suuuuary and in accordance with "the penalty euforcautent law" (N. J. S. 2Asu8-1 et seq.). Process shaIl be in the nut'ure of a sunimous or warrant and shall issue only at the suit of the Com- missioner of Health of the State of New Jersey, or the local board of health, as the csse :may be, as plaintiff. 2 actiou in any court by any party other than by the Commissioner 3 of Health of the State of New Jersey or the local bourd of health I for fuiZure to meet the provisions of this act. 8. The Judiciary, Law, Public Safety and Defense Cunu:uttee of the,General Assembly, and the Law, Public Safety and Defense Committee of the Senate, or their respective successors, are con- atituted a joint committee for the purposes of monitorins the effec. tiveness of the implementation of this act. The Conunissioner of Health of the State of New Jersey shall, 2 years from the effective date of this act, report to the joint committee, an avaluution of the effectiveness of this act and the committee shull, upon receiving such report, issue as it may 3eeni necessary and proper, recoui. mendntinns for adminisuative or legislative ehangca affecting the implementation of this act. 9. This act shall take effect 190 days after enactment.
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4 STATEMENT The purpose of this bill, as well as its companioa legislation, Senate Nos. 672, G73 and 674 of 1982 and P. L. L981, c. 318 (C. 2G:30-1 et seq.), P. L. 1981, c. 319 (C. 26:30-7 et seq,), and P. L.. 1981, c. 320 (C. 26:30-15 et seq.), is to protect and preserve in a reasonable manner the health and conufort of the people ia this State by establishing areas that are free frum the toxic and annoy- iug e$ects of tobacco smoke. As a result of hearings hel& ou smolang, it is clear that there is overwLelming scientific evidence that tobacco smoke is detrimental to nonsmokers' health, welfare, and comfort, especially to those who have allergies or cardio- vascular or respiratory diseases. The regulation of smoking in ~ certaia confined places, La., determining when and where, rsther thnn whether, a smoker may legally smoke is, therefore, necessary for the pubiio health. This legislation is even more important in our industrial State where tobacco suioke acts to exacerbate the effects of our existing air_quality. Speeifically, this bilI requires employers to baldnce the health and comfort of nonsmoker employees with the right of employees who desire to smoke by establishing respective areas for each. Several employers have adopted this policy and either prohibit smoking ia their facilities or coutrol it by limiting smold.ng to certain arens: The provisions of the bill do not mandate private businesses to adopt a particular policy, but only set broad parameters. This bill would permit further restrictions not contrary to the bill to be adopted by the employer or to be negotiated as a!erm or condition of employmeat. ~ A person smolang in violation of this act would be snbject to a fine not to exceed $100.00. Failure to establish nonsmolang areas and to post such areas after being notified of noncompliance by the Department of Health or local board of health may result in a fine not to exceed $25.00 for the first offense, not to exceed $100.00 for the second, and not to exceed $Z00.00 for each additional offense. Fines shall be collected by the Department of Health or local board of health: No suit may be brought to enforce this act except by the Department of Health or local board'a of health. The Cam- missioner of Health shall report back to a joint committee of the Assembly Judiciary, Law, Public Safety and Deiease Committee and the Senate Law, Public Safety and Defense Committee in 2 years as to the effectiveness of this act.
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APPENDIX B
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.- - rFeic~er Workers Now Are Singing `Smoke Gets in Your Eyes' C ~* THE WALL STREET JOt_'K\AL, _ Tuecday, Nov. 7, 1978 -P , , irms Use Bonuses and Clinics „ To Get Ernployes to Quit; + A Saving on Cleanup Costs ~ By EILEEN V. KELLIHER ~ - Staff Reporter oJTHEwALLSTREETJOCANAL t Noon Electric Corp. decided no-smoking Is good business. Eighteen months ago, the Houston sign maker got rid of its ashtrays, banned smoking by its employes and offered a raise of 50 cents an hour to any worker dent, Gardiner Hempel, began offering his 36 employes $7 for each week they didn't smoke, Last year, Speedcall, which makes mobile communications systems, paid nearly $10,OO0 in rewards, and the number of smokers dropped to four from 25 in two years. •- City Federal Savings & Loan Associatiori of Birmingham, Ala., has paid monthly divi- dends to nonsmokers since 1967: Last year, the company paid nearly S}0,Ot)0 in $20 monthly rewards to 166 of its 185 full-time ~ employes. - - ' who kicked the hablt. .. ' , ~ Wader. 1Yindow _ Sher a Hi H k N ' t id ~ m n n . eon ,.s pres en , says James MI11ei, president of Intermatic the cam ai i tin hi 0 p gn s cos g m S1t)o a year , ` because one man, his best sign maker, has ' dropped a three-pack-a-day habit; three ~ other workers are trying to quit '., ;- The smoke is clearing at an increasing number of companies like Neon. Indeed; 307aof U_S. businesseshave* some soff of no- t' smo3cing policy;_ either- banning. smoking or limiting it to designated areas, says a sur vey by DaFtnell Institute:'of Business Re- search in Chicago. Three percent of U.S. businesses even pay their.- workers not to smoke„ Dartnell says.;. L ••Arrrly„ of Janitor§ K ' ,mpanies are turning against tobacco in ise to evidence that smoking costs j th n money-about S19 billion a year from : absences and premature deaths due ' to smolang-related illnesses. says the U.S. De- partment of Health, Education'and Welfare. ~ Heart disease, lung cancer, emphysema, • ' high blood pressure and other illnesses said Inc., a Spring Grove, Ill., maker of timing devices, opened a betting window in October 1976 and invited his employes to wager up to $100 of their own money that they could quit smoking for 12 months-giving them the op- portunity of doubling their money. At year's 1 end, Mr. Miller paid $2,815 to the 25 win- ners, "the 45 losers paid $1,105 to the Ameri- can Cancer Society. . .' ; Mr. MiIler says he will ~ stait another stop•smoking program soon, but right now Intermatic is-involved in a weight-loss cam, paign (E4 for each pound shed over a 15- pound minimum). "I can't expect people to lose weight and give up smoking at the same time,••'he says. . - 1.* . .- , Westminster. Business Systems Inc. of Lake Bluff, Ill.; gives a $50 savings bond to ~ smokers who quit for one'year: It also quit 1 hiring smokers five years ago- and restricts smoking by those who haven't quit to the lunch room, which has an air purifier. Kari Lichtenberger, president, says he reasoned that nonsmokers were 1n the major~ty, and "why should they be forced to Inhale others' .' ~ 1 gar,bage?•.: ..~• _ -to be smoking-related usually occur when an ~ employe is 45 or older, ai the. peak of his or '. : her career and of the greatest value to the ~ . company. Additionally, HEW 'says direct'- ~ health•care costs attributable to iLlness fromj i smoking are another $8 billion '='~ ~' There are other costs too. Merle Norman ! Cosmetics banned smoking at its four plants . , and its Los Angeles office in 1976 and Iarge cortlpanles~ge ef•'affy~'aTe ie7ncta`nt• tu'lmpmemo>tltig~tianii~a7ld'tfiey'shun ~o- m!s progranu-as°difffc-ult"tdmo`@for:`$ut Americam Telephoti"e &"Y'e grapG6.; Z~ow therehy cut its housekee in costs h lo% '' ~~~-=C°'r'=COntinentai~ Illittol~ =CbrQ; or $13.5oD a year, says JgB. Nethercutt, ~~berly-Clark Car~i;Qti9.fiterOats Ca: and chairman- Mr. Nethercutt says he got rid of; ~ others sponsor snioking-wlthdrawal clinics, the "army" of janitors who disrupted work, poster campaigns and similar educational three times a day to empty ashtrays. %" ,. 1 Pt'°.°rarrLs to encourage smokers to quiL The Alexandria,* Va.,. fire department• { Large ~mpanles also depend on peer stopped hiring fireflghteri who smoke, in: ~Pressure from nonsmokers. At Quaker Oats, pzrt because 16 of the 22 men who have re-f workers are encouraged to post no-smoking those who -don't smoke, Although some workers have complained, the smoking ban remains lA force at the company's other Nne asbestos plants. The company has :Jso stopped hiring asbestos workers who smoke. As the ranks of smokers dimiNsh (!o =6 of the population over age 21 so far fmm 4076 In 1966), efforts to diseourage smoking in the work place are expected to continue. Currently, 22 states have laws that restrict smoking !n such public places as banks• stores and restaurants, and today Ca11IorN= ans aill vote on a measure that would han smoking In offices, schools and health c•ulc'i facllittes. . ~... _. _ . ~~----.~. - . . ;. : _ si 'd in" . tired since 1973 because of disabiIities were` : ;~ ori desks ~ Prlvate. offices. . -mokers who developed heart:' or lung dis-; ; AT&T's Bel.I - Laboratories Is segregating The dty estimated that a disability re-, ~okeis from nonsmokers In its Whipparly, ~.. ~ ....Int cost it about $300,000 more than d5d; :NJ., plant on an experimental basis and has ~.... retirement. ds to Quit ~ ` ' _: ,hn htor,Pan, president of Cybertek ~ ' r Products Inc.,'says he estimated d habit took 15 minutes of his y,a day`or 3y, of the ivork year. Ap- ~~ to the average 5z2,.500 sal-.. = Angeles-based company, he ''• cost $675 a year per smak- ~ ~ offering them $500 each to rs are offering similar in-~,+ 11 i+__ - .._~..._.f ~ declared 70% of the faciifty ofMLmits to 'smoker8. __, , r'a . _.-.. .:.: . . }~,Not all-smokers are snttffing their ciga ' r'ets'in silence. Last April, a federal court in : Texas ordered.Johns-Manvllle Corp. to a11ow I smbking in certain areas at its Deniao JJJJn, Texas,_ asbestos plant after. some workers f~il,e,d~~ .; sltit_ agalnst"_J}se, building-products a 1113Aer. ~ "...-;:v '. _ ~ ~; _-Johtt~-M_ahville..which,bas. been system-; aticaliy banning smoking at Its asbestos plants since 1976, Is appealing the decisitxz .The company cites evidence that asbestos .en~Ve... mlvM emnko havP a 92-times ¢reater•
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03556061 i <~
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. interagency council on smoking, ~ ind health OiflCEilS JOMN C. LOHG'cST,1.t.0_ Viarrm.n MALLArrt M. AH OEASON, rA:0- YicrC.lurmaA .tALELtte M. wtL:S. S.a.rary LOULS CEHC: b..cw.e O.euor wES.eE>+s Ameriean Aesaemy af Pediatries Am.rie.an Allianee 1pr.Mesltll, iitTsipl Educstion and Aeu•stlbn Am.rieanAssoe+ation at fieaoiratory Th.rsoy. An.arican Cancsr Sociery ATeriun Caltepe ol West P9ysicians Amerlean Collep. Meatttt AasoualioA Aawsean Col/ege of Aadioloqy. Am.rican Golt.q• o/ Swp.ons AAt.ricsn Cent a/ ASaoaa t icn A+nerican Meart Aasocunaf Aen•riean Moaoita/ AsaoeiatloA Aa..man Lt+na A»oaation Am.ncan M.CiGal AaaoCialial Amenean IA.Cica1 Shwent Asaoeiattan. An+.rican Nura.s Aasocssllon ATlnean PMarrnateYliCaI A1taCattdA Am•nean pvolic Mealtn Associallon AA't.rican Scroa/ M. alttt Asaociation . Asam+aan of Stat, ane Temtcnaf Muttn Otficsrs Qoys' CIuOs ot Anwrics Nratio++al 8oartiatYOOnp Men's Cttifttan Aasociatiort. National 9oar9 ol Younq SMom•n's C,ri,oan A,sad;atiaA • - Na,loAat ca+arw at P,renta sna T.acri•rs Maltanal.aq-.lnq Associatlon „ Nitional Lsaque for Nursing National M.dic.al Association Nltional Sludent NiuaM' Assoeiatlon Naltonal iounaatioA tJ 3. ;..oantnenl ott Ce/er+a. IJS 0toarrtmem of N•atn, Ctc„czttan :r,a v+.+far. (',ftice on Smoltinq and H..ltSt OMiea ot Educauan o„D I Ic. M.al ttt S.r..c. U.S. VetersM AdimntattatioM1 ME?a8E.1S.sT-i.ARGE o,n t•o•+, L W HN L T, .rry. M-(Q Conaw C. K.nt, ti..a NpMO/tARY UfE ME.t+eEA3 C Alltst Ccrsne.. tt.0, Emenan faat. Room 1005 291 Broadway, (Vew York, New York 1G007 • Tele;.hona (212) u7'-1--'-0 Snoking a.Tld the Wor~Lace - A National Survey ' A recent nationwide survey revealed that approxirrately 15 0 of U. S. businesses have prcgrarris to encourage and assist their e=loyees to quit smkino. In addition, one-third of the responding cccr,canios indicated a.n interest in developing or expanding smokino and health prcgrams for their wors force. The survey was conducted under the auspices of the • National Interagency Council on &mldng and Health, (NICS3) ., a coalition of over thirty public and private health orga.n- izations concerned with reducing death and disability due to - cigaretteg smking in the Cnited States.. Cigarette --cki.ng contributes to. an estimated 350,000 excess deaths each year in the U.S. frcm lung and other ca.nce..Ts, cardiovzscular disease,~nhps~ and ch.ronic bronchits. As a resul: t, cio -e- tz s=,!dzg accoun ms for an estimated $5 to S8 billion in di ect hea...l -t.h care e.~qpe::ses. In adciition, indirect costs incurred J-n los productivity, ges and ahsznteaisiz ac=tmt for another to $18 billi om. w2-- 0 ., w ~ . ~ . Q . ~ A VOLUNTARY ASSOC.;.T1CN OF NATIONALAGENC:ES AHO CAGAMIZj.1CNS TO CCM BAT. 57•ICKING AS A W EACH MA.ZXAfl
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\ Although some ccmDanies have received public attention as a result of establishing ~~.oking and health programs for their emoloyees, data are 1iTnized on the existence of, or interes t in, smioking programs t'ru cughout U'~. S. busi- nesses. For this reason, `'ICSd surveyed too-level management and medical officials in 3000 U. S. companies: the Fortune "Double 500" (the top 1000 cc,zroani.es in the U. S. ranked by gross sales) ; 1000 medit..^n-sized cormanies (500-2200 employees); and 1000 small companies (50-499 :enployees). Both mediL,-sized and ~sall.comicanies were chosen at random. The survey yielded a.50% response, which is representative of the business comminity under study. The survey sought information ori three issues: (1) The number of companies with policies restricting or prohibiting smoking in the workplace; (2) The existence and form of health:education or promotion progra„zs (including smoking cessation. \ .programs) in businesses; and Snoking Policies .(3) The level of interest in developing or expanding a program on smoking and health for employees. The survey revealed that a significant rn..Taber of the responding companies have policies which restrict or proiiibi t smoking in the workplace. Most policies had been initiated by management, and policies were most fre- quently applied to blue-collar work areas, where sniok-ig often poses a safety as well as a health hazard. Sixty-five percent of res~ondLZg ccnman:es in- dicated that their policy kas established af ter the release of the first Surgeon General's Report in 1964.
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CsilolCl,nQ F:'oQrZTits Snoltin; progra.ms ranked third among health education and health pro- motion programs sponsored by U. S. cor,roanies, after high blood pressure and dietJweight control programs. Almost 15% of responding corrp2.r.ies had a ~' smoking program for employees. Large companies were more' likely to have ongoing health education and health prcnotion programs, including smoking programs. Most smoking and health programs in the workplace were operated "in-house", with distribution of "how-to-quit" materials, physician counsel- ing and other health professional counseling the most corrnon program formats. In addition, most companies utilized their own staff to administer smoking proo ams, and supported activities with existing medical resources rather than providing separate monies for smoking prograrns. The one exception was the provision of r,culti-session group cessation clinics, wnere cor,roenies often were provided assistance by NICSH member agencies, such as the American Cancer , Society and Aznerican Lung Association, to a'ninister the clinics. Interest in Program DeveloIIment One-third of responding cofrmanies expressed ari interest in developing or expanding Rokinng and health programs, with another one-third wnsui-e at the present time. Of those companies which expressed an interes t in developing or ex- panding moldng progl :r~s for their emmloyees, over i Q percent wauld ? i!ce assistance in this endeavor. These responses indicate a large and potentially successful area - r.he wor?placs - to provide assistFnce want to cui L. . 9 to aduit smokers who
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A Call to Action The results of this nationwide survey of U. S. ccrmanies are clear: m U. S. ecrroanies have taken steps to reduce moking in the ' workplace to enhance the safety, health a.nd c II=ort of their e•rcployees. ® A sizeable nunber of co=qanies are already providing assistance to their smoking e~mloyees who want to quit. And, for the most part, these companies are undertaking programs using e.~cisting staff and monetary resources, with some assistance frcm cormrunity health organizations such as the American Lung Association and American Cancer Society. 9 Fully one-third of responding companies want to develop or expand smoking progrms for employees, with the ma- • jority of interested compan.ies desiring assistance with . progrant development and irtpiementation. The National Interagency Council on Smoking and Health, through mernber agencies, intends to'tise the information from this survey to assist ccmpanies 'to '*6xparid s;aoking: and health programms in the workplace. For additional information, contact the National Interagency Council on Smoking and Health, 291 Broad-way, Suite 1005, Nlew York, New York 10008 (212/227-4390). ., .,
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C , 0 ca ur cn ~ 0 ~
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1 I. BACKGROUND Smoking and Health: A Medical a;,d Economic Issue Smoking is an issue of growing concern among employees, ' health officials and top management of many business and industriall firms. Besides concern over the health of both the smoker and nonsmoker, the increa:si.ng•economic impact . of smoking has recent3y caused many companies to look closely at initiating workplace activities discouraging the habit. . in addition, since blue-collar workers continue to have the highest smoking incidence rates, public and private health~ agencies support the development of workplace-based~s;noking programs as a major tool in assisting smokers to quit. Cigarette smoking contributes to an estimated 350,000 deaths each year in the U.S. from lung and other cancers, cardiovascular disease, emphysema and chronic bronchitis.l As a result, cigarette smoking accounts for an estimated $5 to $8 billion in direct health care expenses. In addition, indirect costs incurred in lost prod~uctivity, wages, and absenteeism account for another $12 to $18 billion.2 -~ .
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The risk of developing a serious smoking-related illness C is especially high for workers in certain industries. 'r^or example, employees working with asbestos have a greater likelihood of developing several forms of cancer (notably lung cancer) than those workers not exposed to this substance. However, smokers exposed to asbestos have a far greater risk of ihcurring asbestos-related disease than no:n-sanoking workers at the by cigarette smoking. Others include uranium, chlorine, same site.3 Asbestos is only one of several hazardous substances found in the workplace, the health effects of which are exacerbated cotton dust, and coal dust. _Although some companies have received public attention ( C as a result of establishing smoking control programs for employees, data are limited on the existence of, or interest in, smoking programs throughout American businesses. Few studies have been conductedin thi:; area. One such s tudy, *conduc ted~ by the Dar tnel1 I ns t i tu te -of Business Research in 1977, surveyed 250 office administrators from the United States and Canada. The data collected.indic3te that 30% of the responding companies have some form of smoking policy restricting or proMbiting smoking in the workplace.4 The companies were not questioned about•the existence of smoking education or information programs. In addition, Dartnell did not attempt to poll a representative sample ., of American businesses and no foI!low-up of non-respondents was conducted.
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'~he Washington Business Group on Health polled 160 Fortune "500" companies concerning their health promotion, prevention and education orograms. An interim report, based on the first 59'responses, was released in December, 1978.5 WBGH's data indicate that, with the exception of on-the-job safety training and courses in cardiopulnonary resuscitation (CPR), more companies offer programs on smoking cessation than any other health-related area. Like the Dartnell study, no follow- up was conducted, and only large corporations from the Fortune "500" were contacted. . In order to obtain a more complete and comprehensive understanding of the existence of, and interest in, smoking control initiatives in the workplace, the National Interagency Council on Smoking and Health (NICSH) decided to undertake a survey of American businesses. NICSH is composed of over thirty public and private health organizations who~are concerned with reducing death and disability due to cigarette smoking; in the IInited States. Early in 1979, NICSH initiated~ a survey of 3,000 companies to collect' information on three issues: 1. the number of companies with policies restricting or prohibiting smoking in the-workplace; 2. the exis tence and form of health education or promo- tion programs (including smoking programs) in w •~ C!t companies;; and ~ ~ ' O (4
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3. the level of interest in developing or expanding activities*on smoking and health for employees. C In addition to obtaining data which would describe the current situation with regard to smoking policies and programs in the work place, it was thought that the survey would give direction to NIC.member agencies in planning smoking control .efforts for companies requesting assistance. METHODOLOGY Ea.ch company in the study was mailed a brief questionnaire addressed to the health educator/medical director. The study sample consisted of 1,000 small companies and 1,000 medium- size companies, chosen at random; and the 1,000 Fortune "Double C 500" companies.6 ''Folhowing the mailing, 117 non-delivetable auestioririaires" were returned to NICSH. Forty-eight of these were Fortune "Double 500" companies. New addresses were obtained for 44 of these companies, and questionnaires were sent with a revised return date. Undeliverable questionnaires addressed' to small and medium-sized firms were not followed up.7 Recipients were asked to complete and return the survey 0 w in an enclosed~ postagd-paid envelope to NICS3. As a result tn1 tA of the first mailing, the Council received 296 (101) usable 0 . % O
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responses, evenly divided among the three size categories.8 l A second wave of questionnaires was mailed one month later to all non-respondents. Following this mailing, the Council received an additional 313 (11%) usable responses. To further increase the response rate, a telephone survey was conducted of non-respondents. A random sample of companies which had not completed the mail survey was systematically, drawn for the follow-up.. Trained interviewers, using written instruction sheets, conducted this follow-up, which resulted in an additional 231 (9%) usable surveys. As a result of the mail and telephone surveys, 856 (29%) usable responses were.7 received.9 To determine whether the mail and telephone surveys resulted in different responses, a random sample of telephone responses was drawn and compared with an equal random sample of questionnaires received~ in the mail. No signif icant differences between the 'two samples were found. Thus, data received from both mail and telephone surveys were analyzed en masse. Survey Results C Major findings are summarized below. Survey responses are presented in the order in which the questions were asked. O W s C1'1 C!1 O ~ 1-+
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Policies cdhich Restrict or Prohibit Smokinq in the Workolace A. Which of the following best describes your company's C policy restricting or prohibiting smoking for some areas of company facilities? (check one answer) Company currently has a corporation-wide smoking policy Smoking policy is set on an individual facility/ plant/office basis Company had a smoking policy but policy no. longer exists (PLEASE ANSWER QUESTIONS B-F REGARDING COMPANY'S FORMER PROGRAM) Company has never had a policy (SKIP TO QUESTION G) Don't know (SKIP TO QUESTION G) TABLE I SMOKING POLICIE S Currently , Have a Policy Set On A Policy Set On An Policy Company_Wide Basis Individual Basis 11 Companies* s a $ s $}* 4 ~dC* Y=822} 408 49.6 121 29.7 287 70.3 mall (N=269) 125 46.4 55 44.0 70 56.0 edium (N=280) 137 48.9 42 30.7 95 69. 3 arge (N=273) 146 53.5 24 16.4 122 83.6 y .~hirty-four companies did not answer question I, A. '*These percentages are based on the 408 respondents who indicated they have a sm oking policy.
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Almost half of the companies responding (49.6g) indicate that they have some type of policy, set either on a company- wide or individual facility basis, smoking in th'e workplace. There which restricts or prohibits is a greater tendency among small companies to set oolicy on a company wide basis. The opposite is true with larger companies, which are more likely to set their smoking policy on an individual facility basis. Forty-nine percent of all companies have never had a smoking-related policy. The breakdown is almost evenly divided among the three size categories.* B. If your company currently has (or previously had) a policy prohibiting or restricting smoking in company facilities, what year was it implemented? 19 < Companies report the initiation of smoking regulations' as early as 1914 and as recently'as 1979. In many firms, the smoking policy was set when the company was first established. However, more (17) companies report starting their smoking.v policies in 1978 than in any other year. Of those companies indicating the year in which their policy was initiated (N=159) , 65%-(N=101) implemented the policy after release of the first Surgeon General's Report in 1964. (However, almost two thirds (N =248) of the companies having smoking policies did not respond to this question.) *Less than one percent (seven) of the companies responding to ~ the survey previously had a policy restricting smoking, but ~ C have now discontinued it. ~ - - ~ C ~ W
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C. Who was responsible for initiating the policy? (check the one best answer) Medical/Health Director Personnel Director Other Management Unions Employees Don't Know Other (Please specify) TABLE II WHO INITIATED POLICY C Medical/ Health Personnel Other Don't Director Director Management Unions Employees Know Other $ $ $ $ $ Y $ a ~ $ •A11 Co smokin icies o wi th- - g pol- (N =348)* • . > . 5.5 12.9 54.0 0.3 2.6 8.6 16.1 Small (N-109 ) 0.9 14.7 62.4 0 2.8 5.5 13.8 Medium (N =120) 0 10.8 55.8 0.8 0.8 11.7 20.0 Large (N=119 ) 15.1 13.4 44.5 0 4.2 8. 4 14.3 .,. 03556074 *Sixty companies with.smokingpolicies did not answer question I,E.
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The majority of firms having smoking policies report that "other management", such as the president, vice-president o( :hairman, initiated these policies. This is especially• true for small and medlum size companies. However, in most Fortune "Double 500" companies, groups other than "other management" were also involved in initiating the policy. For example, health professionals were responsible for introdu- cing 15 percent of the smoking policies in the large firms. Neither unions nor individual employees appear to have played a significant part in initiating smoking policies. E. What is (was) the policy.of your"company with regard ' to s:,toking, in the following areas: i g areas collar areas : collar areas :rence ooms :al .i ties No Restrictions Designated Smoking , on'Smoking Non-Smoking Areas Completely Prohibited :ompany p !r ty . W cft~ .~ ~ ~ C . ~ ;pecify) ~ .~ ~
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TABLE III RESTRICTIONS ON SMOKING NO DESIGNATED COMPLETELY RESTRICTIONS AREAS PROHIBITED DINING AREAS Companies (N=401) 79.6 18.5. ~ 2.0 L1 (N=122) 87.7 9.8 2.5 ium (N=137) 86.9 11.7 1.5 ge (N=142 ) 65.5 32.4 2.1 BLUE COLLAR Companies (N=386) 30.6 42.0 27.5 11 (N=120 ) 34.2 31.7 34.2 .ium (N=134) 32.1 39.6 28.4 ge (N=132 25.8 53.8 20.5 WffITE COLLAR .~ mpanies (N=389) . 74.3 15.2 10.5 311 (N=123 ) 62.6 19.5 17.9 3ium (N=134 ) 78.4 12.7 9.0 :ge (N=132) 81.1 13.6 5.3 CONFERENCE ROOMS 1 Companies (N=385) 87.3 6.2 6.5 all (N=120) diurn (N=135 ) rge (N=130 ). 85.8 93.3 82.3 4.2 1.5 13.1 10.0 5.2 4.6 KFDICAL FACILITIES 1 Companies (N=300) •60.7 14.7 . 24.7 :all (N=78 ) 71.8 7.7 0 24.7 :diu.'n (N=101) , 66.3 9.9 c~j 23.8 e .r (N=121) 48.8 23.1 ~ 28.1 c n. ~ , . .t Cn
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The only area in which a majority of companies restrict smoking is in blue-collar work areas. -Companies indicate this is primarily due to safety and health regulations. For example, Co smoking i$ permitted in areas containing flammable goods, public contact areas, and places where food is prepared. Smaller companies were less likely to have any restrictions on smoki ng. F. Are (were) there penalities for violating the poli~cy? Yes No Don' t know TABLE IV PENALTIES FOR VIOLATING POLICY YES NO DON' T KNOW All Companies (N=406) 53.7 38.9 7.4 Small (N=129) 43.4 53.9 3.1 Medium (N=137 ) 66.4 27. O6.6 Large (N=140 ) 50.7 37.1 12.1 . Among companies : with -restrictions or prohibitions-- on-••~ smoking, more than half the respondents said that penalties are imposed for violations of smoking policy. Reported severity of the punishment varies greatly, ranging from reprimanding to firing the worker involved. G. Have the financial costs incurred by your conpany as a result of employees' smoking ever been calculated (i.e., increased~ absenteeism, health care utilization, housekeeping.cost, early retirement)? .. Yes No Don' t know
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Less than 1 percent (7 companies) indicate that they have calculated their financial costs incurredi as a result of C smoking. These are evenly distributed among the companl size categor ies. . H. Have any employees claimed that exposure to the ciga- rette smoke from other employees caused them to develop an illness or physical problem? Yes No Don' t know C The majority of companies (67.3%) indicate no employees have reported developing an illness or physical problem due to smoking. However, more large companies (25.8%) reported having had an employee who has filed such a claim, than did medlum companies (19.3%) and small companies (11%). Several companies responding (13.8$).reported not knowing if any claims had been filed. II. PROGRAMS WHICH ENCOURAGE OR ASSIST WORKERS TO QUIT SMOKING A. Does your company have (or d1d it ever have) an incen- tive program for encouraging smokers to qui t(e. g. time off, money, prizes, etc.)? (check one answer) Yes, currently have an incentive progran. Previously had an incentive program but no longer exists _ No, never had an incentive program (SKIP TO QUESTION B) Don~t know (SKIP TO QUESTION B) Only 1.1 percent (9'companies) curremtly have incentive ~ programs of this type. An additional one percent indicated
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that they have had incentive programs in the past. This total figure is lower than the 3 percent reported by the Dartnell Corporation in 1977. The vast majority (9'6.80) ` have never'had an incentive program related to smoking and health. B. Does your,company currently have (or did it have) ,health education or promotion programs on any of the-following topics for employees? •(check all: that apply) Weight_control/diet . High.blood pressure _ Smoking_ Breast self-examination Exercise Stress -management/control ~ - ~ .... . -Other, ple'ase speci'fy= No, never had such program (SKIP TO SECTION III) ..- _,. .. . .._ Don' t know (SKIP TO SECTION I I I) * TABLE V HEALTH EDUCIATION/PROMOTION PROGRAM Diet High Blood Pres- Dreast' -' Self Stress Smoking Exami- Exer- Cont_ol. Other No Programs sure nation cise % I o o t . o t a All Companies . (N=842) 16.2 27.1 14.7 14.4 13.3 9.2 .14.5 51.6 Small (N=274) 4.0 12.8 4.4 3.6 4.4 4.4 10.0 Q "-370.0 ~ 3ium (N=287 ) 12.2 23.3 11.8 13.6 9.0 7.3 1G.0 V M51. 2 1 Large (N=281)' 32.0 44.8 27.8 25.6 26.6 16.0 17.4 34.5 -
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The majority of companles (51%) have never had any health C education or promotion programs. Of those who reported having health education or promotion programs, high blood pressure was ranked first (228 companies), weight control second (136), and srioking third (124). Many of the companies which offered high blood pressure programs also offered weight control and smoking programs. Fourteen percent of firms responding to this:question indicated they had programs other than the choices given. Of these, first aid and cardlopulrnonary resuscitation were mentioned most of ten. C. How are your employees made aware of these program(s)? (check all that apply)' Payroll stuffers Posters Announcements in company newsletter Through their union Shop foremen Medical department Word-of-mouth Don't know Other (specify)
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TABLE VI AWARENESS OF SMOKING PROGRAMS Payroll Medical Word-Of Stuffers Posters Newsletter Union Fore- Dept. Mouth d Men .1 Co. with ioking pro- 'ams (N=124 ) Zall (N =12) !dium (N=34 ) irge (N=78 ) _ Posters were mentioned more often than any other method % % % $ % $ % $ 25.0 70.2 59.7 6.5 8.1 63.7 31.5 20.2 25.0 50.0 25.0 0 0 25.0 33.3 8.3 38.2 67.6 52.9 0 8.8 52.9 17.6 20.6 19.2 74.4 67.9 : 10. 3 9.0 74.4 37.2 21.8 (70.2%), with the medical department ranking second (63.7%). 1 Neither foremen nor unions appear to have an active role in - . I promoting smoking education programs. D:- • If your company -has (had) an education progr•am-•- --- devoted to helping smokers quit, what form(s) does your company's smoking program take? (check all that apply) Physician counseling of smokers Other health professional counseling Distribution of how-to-quit smoking matezials Single session smoking presentation/films Multi-session group clinics Other (specjEy) Don't know (SKIP TO QUESTION G)
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TABLE VII TYPE OF SMOKING CONTROL PROGRAM r PHYSICIAN OTHER HOW-TO- SINGLE MULTI- C COUNSELING COUN- QUIT SESSION SESSION SELING i4ATER- CLINICS CLINICS OTHER IALS AlI Companies (N-124) ~6 32.3 'b 33.1 % 56.5 o 22.6 31.5 10.5 Small (N=12)* 0. 0 41.7 0 0 8.3 Medium (N=34 ) 11.8 14.7 61.8 26.5 17.6 11.8 Large (N=78 ) 46.1 46.2 56.4 24.4 42.3 10.3 The majority of companies having smoking programs report that they distribute "how-to-quit" materials. Companies indicated~that the materials distributed are received from ~ the Americ,an Cancer Society, the American Lung Association and the Naticnal Cancer Institute. ~ . . In:_addition to ,distributing. "how-to-quit"- materials, many large companies with smoking programs are likely to use physician counseling (46.1%), other professional counseling (44.9%), and multi-session clinics (42.3%). The majority (51%) of large companies indicating they have smoking programs report having at least one dioctor on staff. Many of these companies (40%) also employ at least one nurse. •s ~-*Six ccmpanies with smoking programs did~ not indicate what types of program they have.
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E. Of the program(s) provided, which are (were) conducted primarily by company staff, outside organization(s) or both: Company Outside Staff Organiza- Both .tion(s) Physician counseling Other health professional counseling Distributiom of how-to-quit smoking materials Single session smoking presentation Multi-session group cessation clinics Other If outside service(s) or organization(s) are involved, please specify name(s) C TABLE VIII ADMINISTRATION OF SMOKING PROGRAMS Company Outside ' Staff Organizations Both Physician Counsehing, All companies, (N=46) 76.1 .13.0 10.9 Other Health Professional (N=52) 57.7 26.9 15.4 Fiow- to-Qui t tdater ials (N=61) 59.0 29.5 11.5 Single Session Presen- tations (N=33 ) 51.5 - 39.4 9.1 Mu1ti-Session Clinics . 0 ., (N=40 ) 22.5 70.0 7.5 ~
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It is important to note that all services, with the exception of multi-session clinics, are provided primarily by company staff. It is primarily with multi-session clinics C that the majority of companies with smoking programs turn . to outside organizations for assistance. The outside organizations which most' often provided assistance were the American Cancer Society and American Lung Association; commercial programs were also mentioned. F. Of the services provided, which are (were) administered on company time, before or.after hours, or both: On Company Before or Time After Working Both Hours Physician counseling ( Other health professional counselirig Distribution of how-to-quit smoking materials Single session smoking presentation/ films Multi-session group cessation clinics . Other .,
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TABLE IX WHEN ARE SMOKING PROGRAMS CONDUCTED On Company Time Before/Af ter Working Hours C $ o Physician Counseling All companies (N=45) 84.4 6.7 Other Health Professional All companies (N=53) 69.8 9.4 How-to-Quit Materials All companies (N=64) 81.3 6.3 • Single Session Presen- tations All companies (N =36) 63..9 19.4 . , . Multi-Session Clinics A11 companies (N=40) 30.0 50.0 20.0 Again, with the exception of multi-session group clinics, smoking programs are primarily conducted on company time. The majority of multi-session clinics are run before or after working hours. Some companies report splitting the time required for these sessions between on-work and off-work time. . O W C11 . U1 ~ O X U1 Both $ 8.9 20.8 12.5 16.7
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G. Has your company allocated any funds to support smoking programs? (check one answer) No $100 or less, annually $100 - $500, annually $500 - $1,000, annually $1,000 - $5,000, annually Over $5,000, annually Funds allocated one time (speci~fy amount) Don't know TABLE X FINANCIAL ALLOCATIONS Over One Don't No Under $100 100-500 500-1000 1000-5000 5000 Time Know $ $ $ % $ $ $ $ . 11 comoanies . (N=92)* 70.7 2.2 3.3 2.2 2.2 2.2 8.7 8.7 A minority of companies (12.3t) allocate separate funds for smoking programs each.year. Although the majority of firms do not allocate separate funds for smoking programs, , the use of existing health personnel and company time to provide these services constitutes indirect fund allocation for this purpose. H. Has your company conducted any evaluation of its smokin.g education program(s)? (check one answer) Yes No Don' t know 0 _ c., *Thirty-lwo companies with smoking programs did not answer oues-Cn ~ tion II, G. O ,J . S)
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Eighteen (14.5% ) of the 124 companies with: programs indicate that they have contributed an evaluation of their effectiveness. Most companies which have carried out•an evaluati~on are large companies. III. INTEREST IN DEVELOPING OR EXPANDING SMOKING AND HEALTH' PROGRAMS A. Would your company be interested in deve3ooing/expanding a program on smoking and health for employees? . Yes No Don' t know TABLE XI INTERESTED IN DEVELOPING/EXPANDING PROGRAM Yes Unsure 0 $ All companies (N=823) 33.2 32.5 34.3 Small (N=273 ) _ 26.0 31.9 42.1 Medium (N=262) 34.2 46.2 29.6 ~ Large (N=288 ) • 39.5 35.8 24.7 B. If yes, would your company like assistance with the program? Yes No INTERESTED IN' RECEIVING ASSISTANCE All Companies (N=317)* Yes 71.9 No 28.1' Small (N =84) 69.4 30.6 Medium (N=116) 71.3 28.7 Large (N =117) 74.4 25.6 -t *Several companies who responded "unsure" tc the orevious question-' indi.cated that they are in deceiving assistan~ce in developing smoking programs.
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I About one-third (33.2%) of all respondents are interested C in developing or expanding their smoking programs. An addl- tional one- third are unsure; however, these companies may be iriterested in developing smoking programs with more information. if provided A large majority of companies interested in developing a program (71.9%) would like assistance in doing so. Although larger companies (74a) expressed a'greater interest in receiving assistance, many small (69%) and medium size companies (71%) requested aid as well. . :
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Conclusions The results of this nationwide survey of U.S. companies are clear: - U.S. companies have taken steps to reduce smoking in the workplace to enhance the safety, health and comfort of their employees. - A sizable number of companies are already providing assistance to their smoking employees who want to quit. And, for the most part, these companies are undertaking programs using existing staff and monetary resources, some with assistance from community health organiza tions such as the American Lung Association and~ the American Cancer Society. - Fully one-third of responding companies want to develop or expand smoking programs for employees, with the majority of interested companies desiring assistance with~program development and implementation. The National Interagency Council on Smokinq and Health, through its member agencies, intends to use the information~ from this survey to assist companies to expand smoking and health proa_rams in the workplace. To obtain additional informatior. on the NICSH and its member agencies, write or call: National Interagency Council on Smoking & Health 291 Broadway, Suite 1005 O W C!1 New York, New York 10007 ( 212/227-4390 ) ' ~ O C,~
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FOOTNOTES l. Smoking, and Health, a report of the Surgeon General, U.S. Department of Health, Education, and Welfare, Public Health Service Office of the Assistant Secretary for Health, Off ice of Smoking and Health, p. 2. 0 2. Smokina and Health, p. 2. 3. I.J. Selikoff and E.C. Hammond, "Asbestos and Smoking Editorial", JANLA,, Vol. 242, No. 5. (August 3, 1979), p. 458. 4. •Dartnell Institute of B usiness Research, Chicago, Illinois, Target Survey, 1977. C Programs." December, 1978, Table I. 5. Washington Business Group on Health, "A Survey of Industry Sponsored Health Promotion, Prevention and'Education 6.. Small companies were defined as having~ between 50-499 employees, medium size companies as having between 500- , 2,19'9 employees and Fortune "Double 500" as the top 1,000 companies ranked by gross sales. The large majority of Fortune "Double 500" companies employ over 2,200 workers. 7. A follow-up of a' random sample of non-deliverable question- naires indicated that the large majority of these small . and medium size firms had gone out of business or moved without leaving a forwarding address. - . - , . .. . 8. Eighty-three small companies, 103 medlum-size companies and 97 Fortune "Double 500" companies returned the ques- tionnaire. Thirteen additional questionnaires did not include the company name or size; data from these responses were inc]iuded in the overall analysis, but omitted from the analysis by company size. 9. Resoondents consist of 274 small firms, 287 medium-sized . f irms, and 281 Fortune "Double 50G" f ir;as. 10. Where sample sizes permit or where noticeable differences exist, results are presented by small, medlum and large companies as well as by the total respondents. ., 1Z/79
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APPENDIX D C
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SOCIAL ISSUES C ~~s~~r• ~~~s ~ ~~ ~~, ~~ the ~ i'~a~. ~.lf~ ~C~~., s~"ro~~~ Prodded by court rulings, many companies are creating tobacco-free work areas wrote in a request for a law segregating smokint,~ in the workl,lhce-even though the survey had not listed such a choice. For their part, some companies have come to feel that they have a responsi- The war between the smokers and the nonsmokers has invaded the corporation. A feww companies-including tlmt, 3M. and AT&T-have already bowed to mili- tant nonsmokers and ceded them their own territory in offices and factories: areas free from the blue haze of ciga- rettes, pipes, and cigars. Many other companies, prodded by court decisions and stepped-up campaigns by antismok- ing health groups, will be forced to face the issue, sooner rather than later. Basicall+v, employees who do not want to be irritated by co-workers' smoke in- sist that companies have a duty to pro- vide work environments unpolluted by tobacco. A New Jersey court upheld that argument in~ 1976 in a landmark case against New Jersey Bell Telephone Co., but only recently has it become a gener- ali rule. Within the past three months, three other courts-including the presti- gious L'. S. Court of Appeals in San Francisco-have imposed on employers the obligation to take reasonable steps to separate smokers from nonsmokers. All three cases involved employees acutely sensitive to tobacco smoke. But "as a practical matter, it is going to be very, very hard to draw a line" between those who are physically unable to work in smoky rooms and those who simply do not like doing so, says Washington lawyer John Banzhaf III, executive di- rector of Action on Smoking & Health. Because it would consume too much time and money to take each case to court, Banzhaf says, :'we're going to have to adopt general guidelines." Liti- gation will serve as an "or else" for companies loath to establish guidelines. Bolder elevator riders BanzhaYs group has lots of compan}'. The American Lung Assn, earlier this year sent all lo- cal sections a guide on how to persuade companies to create nonsmoking sec- tions. The Group Against Smoking Pol- lution of Massachusetts (GASP), in Bos- ton, averages more than five requests a day from callers who want help in set ting up tobacco-free 'areas where they work. Across the continent, the Berke- ley-based Californians for Nonsmokers' Rights logs the same number of inqui- ries daily. When the California group recently polled its members to set tobby- ing priorities for the coming year, fully one-third of the 12,000 respondents 102 BUSINESS WEEK November 29. 1982 bihty to accommodate nonsmoking em- ployees. With only a third of most work- ers now smoking„ "you don't want to tell your majority; 'Well, the heck with you,' " says Robert N. Beck, executive vice-president at Bank of America: in San Francisco. Written guidelines are essen- tial, Beek says, to: inst'ruct line managers on how to respond when nonsmokers aslc for prot'ection, and the bank is now formulating its policy. Minnesota, the nation's leader in this area, has had a workplace smoking law since 1975. It bans smoking in any en- closed area "serving as a place of work" other than -sections specially designated for smokers. The statute has so embold- ened antismokers that it is not unheard of for an elevator passenger in a Minne- apolis office building to pluck a cigarette out of the mouth of someone ignoring the rule. The 10-person rule. Responding to the Minnesota law and employee complaints, Control Data Corp. in 1979 adopted an eight-page policy outlining the rights of smokers and nonsmokers. It separates work areas into smoking and nonsmok- ing sections, with work stations shifte& around so that each emplbyee works im the section he or she prefers. ti'entilation systems are designed to waft air cur- rents away from nonsmoking areas. Other companies get even more specif~ ic. In West Palm Beach, Fla., for in- stance, the Government Products Div. of Pratt. & Whitney Aircraft of Canada Ltd., a subsidiary of United Technol- ogies Corp., sets a minimum distance of 4 ft between smoking and nonsmoking areas and directs that in the cafeteria and dining room,, the "size of the smok- ing area will not exceed that of the non- smoking area." American Telephone & E ~ ~ ~ Schemes to satisfy militant nonsmokers range from special ventilation systems to 4-ft. buffer zones next to smoking areas smoke-free environment to the longer life of office furniture unmarred tiy smoke to calculate that' such segregation will! save S243 per year per smoker. 'I took my ashtray home.' Actually, half of all U. S. companies have formal policies curbing smoking, according to a 1979 survey by the federal government But almost all of these concentrate on blue- collar areas, where smoking either would be hazardous-for instance, he- cause of the presence of flammable chemicals-or would risk contaminating the produet Only 1'?5, of the companies in the study had rulcs about smoking in conference rooms, and only 10i~ provid- Telegraph Co. says that when more thanped nonsmoking areas in their dining fa• 10persons are in a meeting, the room(,icilities. should be divided into smoking and non-W For companies fearful that smoking .smoking areas; in smaller gatherings,CP bans in white-collar areas may create anyone may veto all smoking. 7~employee controversy, Harold K. Haug. There are obvious costs to segregat-C..1manager of human resources for tht• ing smokers„ including having to buildN.N'Iinneapolis-based' Physical Electronic s walls between smoking and nonsmoking Div. of Perkin-Elhier Corp., has a hohe- areas and increasing ventilation. But the ful message. The division limited smok. antismoking lobby counters with figures of its own. William L. Weis, associate professor of business administration at Seattle University, took into account ev- erything from the increased productivity of nonsmokers who feel better in a ~I 5_5 7 ing to two employee lounges back in 1974, he recalls, and no one objecte&"be- cause it was so uniform," and' no one has had to be discipline& since. As for Haug, "I took my ashtray home, and that was it"' • SOCIAL ISSUES NOV 2 4 19dZ
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APPENDIX E l
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( Sick leave policies may affect statistics The other side of the smoking worker controversy Lewis C. Solomon Lewis C. Solomon, PhD, is a pro- fessor in the Graduate School of Education at UCLA. This paper is one result of his work as a consultant to seueral tobacco companies on economics and related matters. W sp tlliam L. Weis has earheaded a cam- paign to ban smoking and smokers from the workplace through a series of articles claim- ing that employers who do not hire smokers can "shave person- nel costs by 20 percent, in- surance premiums by 30 per- cent, maintenance charges by 50 percent, furniture replacement by 50 percent and disability payments by 75 percent." Weis concludes that total costs per smoker per year to an r employer are $4, 611 or $4, 689, depending upon his publication date. These assertations have been relied upon recently by other writers to support their arguments concerning smoking in the workplace. But closer scutiny of Weis' material, reveals that his analysis is faulty and his conclusions are without merit. As Weis, himself, allows: "Skeptics might argue that these numbers are as soft as the underside of a porcupine, and that may be true." Indeed, virtually every part of his estimate is unfounded and he compounds his errors by surveying those persons most against smoking. Weis asserts that, "Men who smoke more than 40 cigarettes per day are absent from work almost twice as often as their peers who have never smoked." He concedes that such "absences may be due to causes other than smoking." There is good reason for that concession. Data appear- ing in the Statistical Abstract of the United States (1974), which Weis relies upon at times, demonstrate that: • Work loss for women smokers is smallest among women who smoke the most; • Work loss for male smokers is smallest among males in the second highest smoking - category; • Work loss per person O declines as the number of W cigarettes smoked~ increases ~ through the first three of the C) four smoking classes for men O and the last three classes for ~ women. Lower absenteeism More recent data are of equal in- terest. Among men, the 1976 National Health Survey showed smokers of less than 15 cigarettes per day to have an absenteeism rate of 2.6 days, compared to those who never smoked with 4.3 days. Other data inconsistent with Weis' claim appear in the 1979 Surgeon General's Report: Male smokers are reported to be absent less than ex-srnokers and 72 M.AFtiCI3 1983/Peraonael edmlalstrsrAr
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have less bed-disability; male smokers of less than 11 cigarettes per day are absent less than those who never smoked; and. for women in the "17-plus" age category, present smokers re- portedly have less bed-disability than either former smoken or those who never smoked. We9s uses a cross-sectional, weighted average of work-loss days obtained from the Statistical Abstract to estimate that in 1970 smokers were absent 2.2 days per year more than non- smokeis. The exact same meth- odology (which we reject) using 1976 data leads to a difference In work-loss days of 1.3 rather 2.2. This 41 percent decline in the dif- ference in only six years could lead to the projection that in the 1980s the reported difference in absenteeism between smokers and non-smokers will disappear. To make any sense out of the absenteeism point, it is necessary to know why workers are absent. Numerous factors have been associated with absenteeism in- cluding age, sex, family re- sponsibilities, personal problems, . use of alcohol, use of drugs, general health, type of employ- ment, job responsibilities, job satisfaction and commuting time to work- One way to examine the claimed association between smoking and absenteeism is to compare demographic and oc- cupational characteristics of smokers and non-smokers, and to compare the work-ioss rates for equivalent demographic and occupational groups. Many studies have reported a higher incidence of smoking among blue-collar workers than among white-collar workers. Therefore, if relatively low-paid assembly line workers are more inclined to skip work occasionally than are top executives, a cor- relation between smoking absenteeism would be observed. But rather than a casual relation- ship between smoking and work- loss days, the correlation would probably be due to job boredom, lack of commitment to the employer, low pay and so on. Vacation time Another confounding factor ig- nored by Weis is the fact that sick leave substitutes for vacation time In certain jobs. Many employ- ment arrangements offer a cer- " tain number of paid vacation days and a certain number of paid sick days per year. In effect, the contract offers a certain total number of paid days of work- loss. If the employee does not use all his sick days, he is not tak- ing full advantage of his employ- ment benefits. His total income ...in a country where the worker may change employers or elect to go Into business for himself, most on-the-job training costs are borne by the employee In the form of a lower wage. will be less than what was nego- tiated, if money wages are lower than they would have been with- out a paid sick-leave policy and he does not take all his allowable sick leave. Clearly, salaries will be lower if a sick-leave policy is part of the total compensation package. Since employees in jobs with such sick-leave fringe benefits (i, e. , blue-collar, union- ized jobs) are more likely to smoke than are those in other jobs, this is a further indication that the smoking-absenteeism correlation, if it exists, is not casual. As mentioned above, when a sick-leave policy is part of an employment agreement, part of the cost is borne by the employee in the form of lower monetary wages. If the employer expects a certain number of days of absence, he will include this in his evaluation of the (annual) pro- ductivity of the worker and pay him accordingly. The question then becomes whether extra sick days taken by one group com- pared to another are beyond those allowable (and compen- satable) by mutual agreement. If total work-loss days are about six per year (as indicated by the Statistical Abstracts of the United States), this seems fewer than most sick leave policies would allow and so would be included in the wage calculation. Weis cites an estimate, which he attributes to Luce and Schweitrer, that "on the average, smokers require an additional $230 per person per year for medical care alone, and cost an additional $765 per person per year for discounted lost earnings due to morbidity and premature mortality." Those figures cannot be found in Luce and Schweitzer, and Weiss does not indicate how he developed them. More importantly, Weis assumes "that the incremental savings from these factors (various insurance costs, taxes, social security, medicare pro- grams, health care] flow directly to the employer." He admits that this is a"futuristic', that is, unrealistic assumption. Why these items should be considered savings to employers is unimaginable. As to the "discounted lost earnings" assertion, if workers fai.l to earn wages because they are ill or because they die, the "lost' earnings are a private cost to them, not a cost to their employers. Professor Weis seems to suggest that such "lost earn- ings" may approximate the employer's cost to train a new employee. In fact, in a country where the worker may change employers or elect to go into business for himself, most on- he-job training costs are borne y the employee in the form of a ower wage. ?) 2tedical costs Ll~ As to the "additional medical care" cost assertion, if medical costs are higher for smokers (we cenm+wd on vow 101 Psrsonn.i Admisilstrstor/'ytARC3 19M 73
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` . SMOKING WORKERS - Condmud fnom page 73 do not accept the data presented as proof that such costs are higher), this is only a cost to employers if insurance rates rise for all employees and they are not offset by lower salaries. Fur- thermore, there may be an ele- ment of "double-counting" in - Weis' analysis. His "medical care" cost allegation includes the cost of "contributions to health,, disability and life insurance plans; taxes for state and federal Readers' Comments Conunued /iom page 4 looked at the table of contents and noted the titles of other articles, i.e., "Concession Bargaining" and "Give-backs". If we are to convince employees that they don't need representation, we need to use a more constructive vocabulary. When we use words like "concession" and "give-backs", don't we give the impression that we in management are attempt- ing to place the burden of our economic woes on the back of workers? Alternatively, shouldn't we be stressing to our employees the need for improved produc- tivity and the need to make ad- justments in compensation packages so that secure and stable employment continues to be possible? SpecificaIIy, we must come to understand that we are competing in a world market and will achieve a secure economic future only by putting high quality, competitively priced products into the market place. M. C. Fritzsche Vice President - Personnel Central Soya Fort Wayne, IN employment compensation and taxes for federal social security and medicaie programs." Such cost factors seem to be included in Weis' "absenteeism" assertion, which is predicated upon an employei s expenses for "wages and salaries, including fringes and payroll taxes." Weis cites a claim by luiarvin ' Kristein of the American Health Foundation that smokers cost an extra $45 per year for accidental injury and related workers' com- pensation cost'. These assertions are based on studies allegedly showing "smokers have twice the accident rate of non-smokers." Again, the suggested associa- tion between accidents and smoking, if it exists at all, is not likely to be casual. Since smokers tend to be found more often among blue-collar workers, they are more likely to be engaged in strenuous physical activity during the workday and therefore more likely to be exposed to physical harm through accidents. This analysis is supported by the fact . when a sick-leave policy is part of an employment agreement, part of the cost is borne by the employee in the form of lower monetary wages. that premium rates for workers' compensation are determined, not by employee smoking habits, but by occupational category, carrier experience with the business and the statutory level for workers' compensation for the particular state. Biased remarks The estimates used for time lost per day due to smoking are ob- tained from interviews with employers who have instituted non-smoking policies (presumably persons with an anti-smoking bias), and an estimate by a consulting firm- Robert E. Nolan of Simsbury, CT. Weis'then estimates that a smoking employee loses 35 minutes per day by smoking (he assumes one in five smokes a pipe, which had a higher estimated time loss). Weis seems to be assuming that smokers are able to spend more leisure time on the job because they are smokers. He has not shown that time spent smoking is not a substitute for non-smoking on-the-job leisure. For example, non-smokers may spend equal time at the coffee machine or talking to their co- workers. workers. The $1,820 alleged cost in this category is clearly erroneous. It assumes that the equivalent of 18.2 days per year assertedly lost by smokers is not taken in other forms of leisure by non-smokers. Property damage Weis estimates costs by interview- ing employers who have im- plemented non-smoking bans in their firms. This would seem to bias the estimates upwards because the employers are either predisposed against smoking, or have based their estimates on a particularly bad' experience which caused them to implement the ban. These biases lead Weis to ; his annual figures of $500 for I property damage and $500 for maintenance. Since Weis' estimate of the- claimed costs of "involuntary" smoking relies on the claimed costs alleged to be associated with direct smoking, it is subject to all the infirmities of those allegations described. Weis implies that employers will benefit from refusing to hire smokers. But if substantial numbers of workers in a par- ticular trade or profession are ex- cluded from hiring consideration. there are inherent inefficiencies. The situation is not different from that which exists when women, blacks or other subgroups are systematically excluded for reasons unrelated to job performance. 0 Petaonnel Admintsta'ator/ MARXB 1983 101
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APPENDIX F _ C ~
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~ The incremental costs associated with employees who smoke Is approaching $5,000 per smoker per year Can you afford to hire smokers? William L Weis Dr. William L Weis, CPA, is associate professor of business administration in the Albers School- of Business at Seattle Uniuersity.~ Dr. Weis is author of several articles on financial and managerial accounting issues and is co-authoring a book on the cost consequences of employing smokers. He received his PhD from the University of Washington. W t hen I first suggested to employers that their sagging productivity could be reversed by he purchase of a 79C "No Smoking" sign,t they laughed. When I proposed that up to $4,500 per smoker is squandered by em- ployers each year, $4,500 that could be used more judiciously to reward exemplary performance, invest in cost-saving technology or simply added to profits, they doubted. But amidst the doubting and laughing, a growing number of pioneering business owners began to study the data on smoking and its cost consequences. A few were bold enough to challenge our tradition of tolerating the incon- veniences associated with smoking and implemented personnel policies that both banned smoking at the workplace and proscribed the future hiring of applicants who smoked. The expected cost reductions from these policies were, based on results to date, underestimated. Not only did anticipated savings from absenteeism, insurance rates and maintenance exceed expectations, but new categories of savings emerged that only the most imaginative efficiency expert could have projected As the experiences of these employers are shared with other cost-conscious business leaders, smoking "cessation programs", popular among some major companies, will!give way to outright proscriptions - both against smoking on cornpan~ premises and against hiring smokers. Today there's a lot less laughing and' a lot less doubting about the profit consequences of smoking at the workplace. Soon there will be a lot less smoking. This article points out why. .. What Are The Costs To Employers? In a recenf article2 I listed several reas from which employers can xpect to reap handsome dividends y imposing smoking bans. These eas included absenteeism, mor- al'ity, insurance, on-the-job produc- vity; maintenance, depreciation ~Obn furniture and equipment and employee morale. With the help of several other researchers in Pccsonniei Administrator May 1981 71
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the field, it is possible to estimate how much extra each smoker costs his or her employer from these sources. A word of caution. Smoking behavior, employee mix. physical plant. production functions, etc. -these all vary widely in our complex industrial state. So, too, wiIl the cost and profit consequences of tolerating or banning smoking from the workplace. Using the best information available today one can approximate these savings. That information, and hence the estimates, will improve as we move this area of exploration from infancy to maturity. But if we don't begin to app!y the already substantive data available, we may never reach that maturity. C Absenteeism Incremental absenteeism has been supported by numerous studies over the past three decades.j As one might expect; the rates are highly correlated with dosage - men who smoke more than 40 cigarettes per day are absent from work almost twice as often as their peers who have never smoked. The cross-sectional average for all ages and all dosages is 45 percent greater for female smokers and 57 percent for male smokers!-approximateIy 50 percent greater for smokers ' in general. This translates into an additional 2.2 days absent per year for each smoker oAhe payroll. (Of course, absences may be due to causes other than smoking.) What does one day of absence cost an employer? Again, this will vary widely among businesses. A firm whose wages and salaries, including fringes and payroll taxes, average $20,000 per employee (at Ford Motor Co. the average annual labor cost for hourly workers is $54.000: for workers in the chemical manufacturing industry, S30.0005) is paying approximately $80 per working day for every employee on the payroll. Based on an assumed 25 percent return on payroll dollars, the direct cost to the employer is $100 per absence -and this does not include the costs of temporary replacements. The total additional cost per smoker per yeas: $220.
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C Morbidity And Premature Mortality Morbidity and mortality differentials affect several factors that are ultimately impounded in a firm's cost function, induding, but not limited to: contributions to health, disability and life insurance plans; taxes for state and federal employment compensation and taxes for federal social security and medicare programs. Mortality rates for smokers are from 70 to 270 percent higher, depending on dosage and age bracket ° Heavy smokers use the nation's health care system at least 50 percent more than do nonsmokers! Let's assume, for purposes of cost estimation, that the incremental savings from these factors flow directly to the ernployez Granted, this is a somewhat futuristic assump- tion, but major insurance companies are beginning to offer big discounts to nonsmokers, especially to firms that have rigid no-smoking policies, so the benefits will ultimately filter down to the employer and can be bargained for today.° Luce and Schweitzer, reporting in the New Englond Journal of Medicine,9 estimate that, on the average. smokers require an additional $230 per person per year for medical care alone, and cost an additional $765 per person per year for discounted lost earnings due to morbidity and premature mortality. It may be some time before the full $995 per employee filters down to the company, but it represents a real-lstirtarget in long-range policy projections. Other Insurance Costs Lost earnings are not the only costs associated with higher rates of mortality and disability. Economist Marvin Kristein of the American Health Foundation estimates that smokers cost an extra $45 per year per smoker for accidental injury and relatrd workers' compensation costs.'" His calculations were based on studies showing that smokers have twice the accident rate of nonsmokers due to carelessness caused by attention loss. eye iritation. couyhing and Prrs.amrl A.l:nini.tsatnr Ma%; 14til hand interference. In addition. Dr. Kristein estimates an additional $45 per year per smoker in insurance premiums for fire, life and wage I continuation policies.tt Productivity Loss Estimates of on-the-job time lost to the smoking ritual-lighting, puffing, staring, pretending to be in deep thought, informal breaks - vary among sources, ranging from a low of eight minutes per day'Z to a high of 15 to 30 minutes per hour.U A conservative compromise of 30 minutes per day for cigarette smokers and 55 minutes per day for pipe smokers, provided by the consulting firm of Robert E. Nolan from Sumsburg, CT, is the basis for this estimate." A tirne-weighted average of 35 minutes lost per day, assumes that one in every five smokers puffs a pipe. If we again assume that $100 per day is + On the legal question of ! banning smoking in the workplace, the economic ~ repercussions to an industry boasting one of the most powerful lobbies In Washington almost guarantee a Supreme Court hearing in the next few years. a reasonable approximation of the return expected from each employee, then the equivalent 18.2 days lost per year (based on a 120,000-minute work year and a 480-minute,, or eigh.-hour, workday) is costing the employer an additional $1,820 per year per smoker. For jobs in construction and~ the trades, where tools go down when smokers light• up, the time and dollar loss may be substantially greatec Property Damage, Depreciation And Maintenance C~.) 01 Dr. C. Patrick hleenor, professor ofV1 management at Seattle University, Ea and I are currently preparing a 0 compendium of cases based on 0 interviews with business owners and executives who have implemented smoking bans at their respective organizations. The estimates whic follow arc based on a preliminan synthesis of these business cases. Pro~erty damage and depreci- ationt are roughly equivalent . phenomena for estimating increrr tal costs for most business Fumiti carpeting and draperies are gener replaced when damaged and the damage invariably takes the forn cigarette bums. Estimates of usei' lives on commercial furnishings z primarily based on the employer tolerance for bum spots and the expected frequency of appearan I for burns. Employers with whorr ; we spoke are revising those estimates upward, since the primary agent of depreciation has been eliminated. Radar Electric's Warren McPherson expects furniture and fixture replacement intervals to at least t*iple and others generally agreed with this estima Firms that employ costly precisic machinery have long recognized damage caused by smoke merel circulating in the surrounding air The well-known Shimp decision decided by Judge Gnuccio again New Jersey Bell Telephone Company, was based partly on New Jersey Bell's enforcement ~ smoking restrictions to protect it sensitive telephone equipment, ' refusing to enforce comparable restrictions to protect the health its non-smoking nersonnel.16 Estimates of per-smoker costs admittedly crude in this categon but will improve with continued research. In our case research, Professor Fleenor and I found tl employers expected to save at l $500 per smoker per year from incremental replacement of furnishings and equipment, not counting occasional patch-up w on recently-acquired carpeting, which, according to Unico's Jar Douglas, can run as high as $1( per repair. Maintenance was another are for savings according to many owners of smoke-free business. Routine deaning was reduced L as much, as 60 peicent in some workplaces, partly aided by a rr c!eanliness-conscious workforce
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(windows„ show cases, etc. ) to an annual instead of monthly routine. Repainting of interior surfaces was similarly obviated, since the film that clouds the windows and fades the wall finish is simply exhaust from the tips of cigarettes and the lungs of smokers. Again, a per-smoker estimate is largely a matter of conjecture, but we found no argument among interviewees with an assessment of another $500 per smoker.One employer who had 40 smokers on his payroll before implementing a strict non-smoking policy was able to reduce his cleaning force by one person and reduce his average painting and window washing work by two-thirds, thereby saving $30,000 per year from main- tenance alone, or $750 per smoker. A $500-per-smoker-per-year target is a reasonably conservative expectation. Involuntary Smoking And Employee Morale Although a surprising number of employers are still oblivious to the health hazard imposed on non- smokers who live and work around smokers, the evidence is compelling. The most relevant research to our study of business costs was conducted by Professors James R. White and Herman F. Froeb of the University of California at San . Diego. Reporting in the March 27. 1980 issue of the New England Journal of Medicine, White and Froeb found a significant impair- ment of the small airways function for nonsmokers who work around smokers, damage equivalent to that suffered by light smokers (i.e., one to ten cigarettes per day)," or approximately one-fifth the damage to normal smokers's lf we apply this one-fifth to our estimate of incremental costs from excess medical care, discounted lost earnings from morbidity and pre- mature mortality and incremental absenteeism, then each smoker is incieasing the per-worker expenses of nonsmokers by $243 per year. And since two of every three workers are nonsmokers, the i I incremental cost duc to heaith impairment caused nonsmokers is $486 per stnoker per year. Finally, in spite of the substantial additional costs just itemized. ernployers who no longer tolerate smoking in their firms insist that the major profit consequences, by jar, stern from higher employee morale. Smoke-free work environments are clean, healthy and conducive to good working relationships. The benefits of higher morale are difficult to quantify but the reader should note that the total cost projected in this article is exclusive of what most employers regard as the foremost dollar consequence. Summary Figure 1 summarizes the various cost savings that employers might expect from a policy that both prohibits smoking on company premises and restricts all future hiring to nonsmokers, who now constitute two-thirds of the adult population. The total may be viewed another way- as the additional cost per year associated with each smoker on the payrolL Is it worth 0 Skeptics might argue that these numbers are as soft as the under- side of a porcupine, and that may be true. At the same time, there is little doubt that the incremental costs to'business owners from employing smokers are indeed substantial and arel possibly higher than the rough approx- imations here. But Can It Be Done? Somewhere in the reading of this article, several bothersome questions will havee plagued even the most supportive reader. Is this all legal? Is it commercially feasible? Are there really firms that have announced to their employees that after January 1, 19XX smoking will no longer be permitted on company premises? Are there really employment application forms that boldly ask, in Question 1, "Do you smoke?" and follow~ in Question 2 with "If your answer to No. I was yes. do not bother to complete the application. "? Are there really signs posted at entryways of public PenonnalAdministrator'May 1981
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C establishments reminding valued clients and customers to extinguish smoking materials before entering? The answers to all but the first question are decidedly "yes": to the Eirst, probably so. Professor Fleenor and I can positively attest to the feasibility of no-smoking policies: we have yet to see one that has failed. On the legal question of , banning smoking in the workplace, the economic repercussions to an industry boasting one of the most powerful lobbies in Washington almost guarantee a Supreme Court hearing in the next few years. But the judgment of reasonable and disinterested 'ustices, once con- fronted with the cost increments discussed here and elsewhere and with the gruesome implications of White and Froeb. will certainly favor the rights of employers to pursue a least-cost personnel policy when that same policy is necessary to protect the health of non- smoking employees. A more appropriate legal question, in light of White and Froeb, is the right of employers to continue subjecting two-thirds of the workforce to the damaging byproduct of their co-workers' smoking habit. The only question that remains is the assumption of judicial reason and disinterest Unfortunately, with the mix of lawyer and politician populating the highest bench, that assumption is by no means assured. Estimates of on-the•job time lost to the smoking ritual -lighting, puffing, staring, pretending to be In deep thought, informal breaks-vary among sources, ranging from a low of eight minutes per day to a high of 15 to 30 minutes per hour. Conclusion No one can guarantee that a smoking ban will immediately improve annual pro.Fits by $4,500 per reformed or displaced smoker. On the other hand, if your firm stops hiring smokers*and establishes a firm date for proscribing all smoking on company property (by both employees and customers), you may be assured that • Personnel costs will decline. Expect to accomplish the same work load with 10 percent fewer employees. • Maintenance costs wiff decline. • Actual physical depreciation on furniture and equipment will slow substantially. • Insurance rates can be slashed through renegotiation for new fire, health, accident and disability coverage. • Employee morale will improve. • Customers and clients will adjust, without adverse . repercussions. to your new policy. Yours could be the first smoke-free organization to report unfavorable results, but 1''il place
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my bets against that happening. Smoking is an expensive luxury. Can your business afford it?0 References 1. See ukis.. W. L, "lmprove productlvity overnight", The Collegiate Forurn, Fall 1980, p. 2. 2. W¢is, W. L, "Profits up in srnoke", Personnel Journal, March 1981. 3. See. for example. U. S. Departmencof Health. Education, and Welfare, Smoldng and Health, a Report of the Surgeon General (1979); U. S. Department of Commerse. Bureau of Census, Statistical Abstroct o/the U. S. (1974), p. 87: and U. S. Public Health Service, The Health Consequences ol Smoking: A Publ'ic Health Service Service Reuiew (1967). 4. U. S. Department of Commerce, op. eft 5. Drucker, Peter, "The danger of ex<escive labor Income". The uh11 Street Journal, January 6,1981, p. 22 6. U. S. Depattment of HEW, op. dt, pp. 2-17 7. Kristein, M. M., "Economic issues in prevention"„Preuentive Med+edne, VoL 6 (1977), pp. 252-264. 8. For example, Robin INoodward. owner of two restaurants in Seattle. bargained with a reluctant Safeco Insurance Company over fire insurance. She insistvd on a minimum 25 percent premium reduction. and got it . 9. Luce. B. R, and Schweitier. S. 0., "Smoking and alcohol abusr a comparison of their economic consequences", The Mew England Journal of Medicine. March 9. 1978, pp. 569-571. Estimates were translated in January 1981 dollars. Lost earnings are assumed to approximate the value Icst to the employer from premature retirement or death, reflecting both the costs of investing in the development of human resources, amortized over a shorter time span than for nonsmokers, and the lost return from early termination of the employee's services. 10. Kristein, M. M., "How much can business expect to earn from smoking cessation", a paper presented at the Connecticut Lung Association Conference. "Smoking in the %brkplace". November 13, 1980, in New Haven. CT. Estimates are adjusted for January 1981 dollars. 1'1. Ibid 12. Ibid. 13. Based on interview with Robin Woodward; Seattle restauranteur, on her experiences as general contractor for her restauranes 14. Reported ih the N6all StreetJoumd, May 8. 1979. p. 1. 15.. "Depreciauon", as used in estimating out-of-pocket costs, refers to actual deterioration of the assets' usefulness. as opposed to its usage in accoun5ng terminology. • 16. Deutsch, A. R., -Nonsmokeri 'rights", 17. I r Seattle Post-lnte'figencer, December 28. 1980. p. El i White, J. R and Froeb. H. F., "Small airways dys.`ttnctfon in nor,smokers 0 chronically exposed to tobacco smoke"„ W The New England Jcurr.al of Medicine, (p March 27; 1980, pp. 270-273. .U1 18. ti-~mder, E. L and'Steliman, S. D., 09r "Comparative epidemiology of tobacco- 1A related'~cancers-, Cancer Research, C3 December 1977, 37: 4608-4622. G.?
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APPENDIX G d CJ Cil t!t ~ ~
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. Torum "No ifs, ands or butts" - why workplace smokincr should be banned A professor tells whv he refuses to "pla-v, bashrul" in his stand' aoains-L smoking in the workplace By William L. vVeis rfi.D., C.P.A. I.ve never bC::I accused of beL'13 rew- ce-t in :zv cnt:husiasnn for no-sraokin3 e^:oEovrr.eat volic:a. In aa a='a:: in ::zc M:~rch. 1931 PeTonnel Jo1rn:.; I made sorr.e prezzv bold c'.air^.s. I promsed ,aat C;oiove-.s couic s;.ave oeaonnel costs by 20 ~V;.t.ent. ^s,. ..nc: cre=u..s by 30 re:L.:.t. ru:..it-u:e GGpreGa.:oII and ::2:aialal:cL r'CC'r+:Cr.^.C.l:s by 50' De:- a: :.. an:: disabilit-%• oavmeats by 75 per- cent - and irn :,rove cmolove: mor.le. ('See : i ::3:1';.~a. 1'93i.. ManZzea'~'.~.eZ. t World. ;7a3• 24. ). \ow I ! :-li^k 3 to nonsmokc:s :.r:c 2) prohibits 311 snok- ir.g on con:~an~- ~rcr..ises. i zDie 1 st:.^n• mr.:.aes t'r.e s~urces o:~ t1hose cc-e-.:ed cosi,savlr:Qs. W-'nile I can*c aa~ anr:°_ai 34.?R9 savings pe: smoke: ::orn sucII a LolicV. I will prOC.^.25e r-^.Zz• Pe:Sonnel costs CA '--e Ce=L'G~_. =`.^3 ~' to aCCoraCl:sa: u-:e sa.^e =_oc: nt or wc:K with cen ocrccnt i:WC: emoior-er. • %tSiaten3flc_ rLCL`:-eY1tmLr. emet:.:1lv intcaor window wz;,;ng, sweeping, re- cainrir.g; aa-:d re.-airs to carecang and craorics wiil drop substantially. • Fire. heslLh, accidcn:. aad disai:ilitv insurance :2t^-S' car^. be slashed t-•Zro[h?:1 xae2otizrion. once the comg::.v has be- aorne s~:.oking-crce. • =;.CloVet :T.ora1C Xiil' iraarove. • Cl:.STCrAe:s :I:C Caeats '•nU 1cc: 7t t.'le new Ool:c7, and mos: will do so'Wt: : e:3- t_':msiasra: cM-11e.. ia a-.;,ooK ~:at rnvy cOtlraSue. Dr. C. raceaor. uzd I will so= anisi. we orcdicr w:ez emiocers c;.n c.re7z co save :-1."39;,e: vear :1er smokc:. as a ave=3:. bv~scootic5 a ,.vo- p:cn;-- .oEic - :: :; 1) :=t^:ew iil -.ir::.g =:r m" :'s ~ m~rshl, :olumn ~rera3 1na .-:T.^T.zr. OCtt-tT :r1e oD- ~O~::T.T .~ t0 r:T :i1zJ~ J:CtJt 07! S:1D,'e.:I oj^ :O ~^sr.sstmtr.:. IV: :;tliCrsa :r•,oughr; :r. :nt :bovt or on :nl .. )1r.r: ;xs- ooin:cr.: :o: M :..Z- i2=...~.. ~: CriC. 23650 (:3.R .:~`...:~75 1.: :S ;;~; e_:o, :n :rie :cnc ~ i able 1 1 ~ E Additional Annual Cost of Esnfllovine Smokers and Allowing Smoking at the Workpiace Source Annual Cost per Smoker Ab5ent>?ei5r"I S 220 ,Mecicai Care 5 230 N1orb1oltV anc Eariv NtoriGEltv (IOsi ejr711nQs) Insurance iexc:uC;,ir? ~ ,9~ On-iS'e-:oC ~'tf':e L7si ?`Coe^v -Da~~'f9aczt° & h.e7rec:at:Cn .Maincenznce InvoiunTarv S^noK:n? -orai Ces: cer :r..c:<2• -er Y=_r S».: 39 •••C-C=."'..^.f `NCr'C Se.^.:!.^.^.Cr %ry~
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s ao nC-.d for : c~zir.g on t:.ese I've see_:•1 rC0' .:..3.'7v sLuL'le'S anC CZYe^. wli-'v t00 .^"..Wri° Stu`OKi'_~-:IC: busl- .^.e`..s Owne:3 to L)lav bisth:.::. 7Ge:e !^_w ~ b. _ rc:ious .~li.c a^c- *-az r.:s:-s ==-^ CS to S'a2'^L:'.'..:.._2t=sq LCi.;I'CrAe.^.i r._o-smolcirag poiicies a^ac e.^.;ov the cost cS11:55 C:te : a00Ve, riS: 25 ru'IC'e K av bC -: .~yrer:ous tizrd ag:... ~zr.: cobacao loCbvisz i2:'DiiCirlv bia.rae for L.e siIII1:I= taaeous s/no:urlg or c3-:.:e;:cs and coa- _CIAc.iag of lung czace: - bu: I'1 bCL my I~7la:a.^.on 3ga:i.St taaL ClSct7ves. So ::1 t:.c.. :aasW'i be:^ a cLe. even snc: dec- aCes of cosilv toCacro iild~'.:S-= reScrarca. False Fears :f vou havc looked a; tac Casz, you are .no QoI:OL IILD£CSSG« Gv the ~JO551'C)lIIL1GS or dc:p Cosr savings •xit4 sraokmg bar.s. 3::: czn we rezlly do it? Gn we just tell L_ ~~'r.rey 5ogs. -:ha:, liilte it or noc. :.c'11' havc to do :is tou3:1 t:.!:cing sorr.e- x^le:e or ;'r.arn to do i, witaouc t^a St':CiG st1C.K da.^.31i1I3 ::or« his m0utll? i :C =.15wer is "Ycs," resauncingiy so. --e ~ of the sa.oke-sisroudcd movie sC:-:.^_ (SOrIle=es 1: was di::lCu1t to rCC- ogZi:.G r^e CI:ar+C:C:S L1 L.7C cloud of ,. :: saoicc j 3..^dz sadis . or :: ~arcv Bog_.-zo ye botn over. iac 1:r.cr mi2hL still be With us ~+e:e it not ror Rls GC1C1Sy habit. OvG: the DBs: sever:.I :^onLhS. Dr. -._t--or a.zd I have si.oke.^n wlt.'1 nu17e:- c:-s e =olovc:s who aavc "c:c=ed tihe 'W.e ..ave vet ;o rce: one who was ::ot :^x_ncene_' Ew u.e crosor., of :advr:se ..=7l0 'Ce sLld' c'~.15IoI^C: 'P:vC:C'.3slor.s. F=, oi un:cllown. o: me untricd, aan be :wesorr.e. 3ut wc r.ave ret to nera on- _:-:r,iove: whose f^.Is we:_ sLOCor- c: bv coiic: resui=. ".' wa:LCC _ lot or sie:ciess :::g; ts, r: tlc: ~e:SOrl. =re51QC.^.T o2 _'-X•Ca: ':T ovC: SOfIIe:.^-1.^.g =~nt: comnrit xs ::~ic31 of c^.e Ic.. u :.~oic~carcn Draoc:iv smok:ng Cens Q'•_: LaCt ire Cc._.^.tC.. 7V bot:1 ::n- C:O4'C= L':C C=rtol'.:C:S - ScCCCted c.^.- : L'S 3SL:C:a11V 5v most. An C:Jr SJme ~COC :e3SOt15. ~ -'v1vti•ls and Facts .'_V' ~V i'.:t. •rb :1.. 1.'.C My::l. 1 i+:1. couor ta-lrat L.. =:a.:.:ag:-to invoiun- :da"v. s:~oke:5 (.rlonsmCKC:S who work aioL•nd s1.dOke:S), S'vot.^. C'..1 a_^.C seve^t. `d G1tC :nC : rOCb iOt.«C `SUQ.::i::c:ara :.:1- :+:. 1e=L Or ::2e sr-=.1 a:.r:SaVs r +^cC'Qi. (wl.^.C SaCS) 1-^n no^.sI«Ck.':5 who we_,eX• posea to smoking a: ::.c woricoiacc. :.Ze Tobacco Irsd. .. ~+•il'~-ooi .L out i..^.«- iMOa=e:.: OI -'~ie sa:+3.11 UrWa~S .^.:I:C^Orl is not proof of health L-zDit- rAe:1t. a7t1t /S a'C adoOr t..e :OOSicCo (r:dus- ., iarcmrcarion of "croof," noc only havc we not oroven ::.at smoking causes lung ca^-ce:, ncitac::avc we prove-- t:it b:c:cr:a c•aue strc;. tr.roa: or I:.ar vilz:ses ctise infiueaza. 1o t.^.e ,oc.cco indus:, L:-1e:e =y be no suca thing as "croof." I: pangs of guilt. conditioned by a cu!- ..ke that for vcr.rs au ol-.ccd the conven- lence of smokers abovC aIl otIle: SOCGaI considerztiors, sta:,d ia .c wap or.ycur r.o-slnoking ool'icy, think a li:aie about' t:-:e we-,-,are of r, n" t :~o-t:n:res of t:.c woriC:orc: wno wou1C i7.Ke to oreSer+C wGa:'s lefa of t:.C_r s="s.a air-•.'avs. 1!]e r1s:C is anot uniquc to pri=iWve work er.viron- ar=. i: c:'r'.;-.%1 Sr: re: f'olrn«~ reports t: a` aa:tiaaa.c cor.:ar=inarion in c:he na- 4on's newesL ;.nd rost mode:n oEce ccmpic%es is uora tcr. :o 100 times hig::- e: ;:.aa 1llo»-aslc r.,.viron~:.cnal a70I1 ~~FC:YC7 1'1.r.1ts for OtaSiG: 21r CL•all- rp. 3'e =:ove ;::.c sroic::rg :aad you r: =ove t'.Se 'J:..^cL'.laIC CDGv'a:..Sn~°IIOn. I~ rKelaLV s+70KC wi'u:. a.^n e.aDlove: who -as enjoyingtilc e:ono wic bCaCfis ot a st= no-smoking poiir.. She dismissed hrJth i.paix.::ent co nons-moice:s as ir.- COnsCCi:etlt::.I. 11e e:...r^.105'er lnvok.:a a coGlr'.:'on' rsvt:.: a Wvrlad of OtAt: for:-zs oi ooilution =a1es the air z•e 5rC3L'1 50 LOX1C u,+~I :.^.e s^oiCC r:Or. cgl- re:aes 2.nd ci5_rs is hard.~r worta worrying _9ctltZ a 1:aI :+11aCr a/c5 ~rOCal?l~ or:g'?nate.= a:..^': r1Lt.:_=Ln ~ t:.1D1.6 ..:aLioflS O£- SC.^-.fi re='_^.s oI C.it'.a. The Case oi Radar Electric ..:o£~S-or r1C~:Or aa'SC: I a~-e~•t'..:C sC:•ea: :~-1..otc.S of our book to cescr.a/lnz .a- prOaC`le3 t:lat ha",,e beC= ' sL1CCes.'1l ZOr sr.-oiti :g-fre: coraca nies. 1 wiil just brief- ly 'e,:sc•,ss sevGml components of one fl,:n's policv, a Woiic,r I:zal ProW:d cs- ta~C:nelv e~CL`aive... Ridat Ele=ac. a Sr.ar,!e distributor of C1CC'..:onlC corn Done.:.c5 with 3 wor.;Cr?fce of aDOroXL'II3Leiv 100 all-ciWe e.:.oiov- ecs, be..me one oi EC^ir-.Ie's %rsL srao::- mg-:ie-_ businesses on Jznuarv 1. 11978. T-ne policy olaaaing smncd months be= forc and wa5 spr-:.elded by FrerCeaz McP11CISor1. "I forl~aily snr-ouzced during tae surnrncr os :977 I:..dt as of Junu:.-y 1. 1978 s:aoking would no longc.: be ai- lawc-?'' on corn-:.nv orcocr~+," !vfc.ohe:- son stares. "1 kncW c:^.:ar this wouid be ve.:; tnrcat=u:g to ove: :ali of rv »•ork- e:s who thez srokcd. so I-a:..rew in some li.ose sS9CC:enC:3 1ncGuCed •Ja:d bC:SIliL's to a nCa:w hC•:.iL.'1 C1L'b for 311 nons,:.o'sea. and :ikai:ed reiC'se C1,:~.C to encou.:2e use of ciub tsa. L^ adeiuon, Nfc?!:crst.n an i<eu:i: wa3c inCe.^aie::t as 2^n ind:lCemG:a Lo kick the 5abit as rui6civ as pcssiblc. "I Was af:...id thaz rav swec:e^.es :=i2a, be resrred by nor.sa:.oke:= on the zav- roll. As it tu.':Zs oL:-a, nonsa?lOke:s have i c:e.T.e.^,dol:5 COr ;p2TS:Orl IOr sIiloKe:s sr±s3oiing to bre-.K _.e habit. I re-.ei r.oti-iing but cncour=ge:=car a.nd or".isc f:orr, my nonsrnok:r.g emplove-s." : rom August 1. 1977. :cad:.r ==.-:c ^.it:::: only r.onsa.okrs. i.:e aooiic=::cn :or =Dioccaeat e.-ressiv conveys _oc. J1S:'V t.olic7 on srzoK_^.g: OniM1 aors:no:C- ::Ces Of LOOaCCO e0["_C21'_le3 - C.':aL.aV<=F:5 are cOtlSiGeSe".. :Of hl::.^.g. S:e:C not in the r,..e dic_I jour-ji.s. I ir.raa:vcivw.eave ?olicv at tZ-°d_r is even sira-le: - OC::eve t:,4t the eY.:al:st from 3L'corn0-V1L=-e Lsn'I a.nv. Since sick Ieave 1S s%.::.- cics r-~r-scnrs a se^ous ^eaila 1::w:~_.~~r_rtiliiv a sr,r esi ~ge absidr for 1::C is i Gsg'iSi.i^5 e'n-nlonr.'.e.^.a..l C:1dls+ASr-OKe:S. a COm^any %,1I.:OUL sa:.olCer: ir C: IO ~.OSC Oa 3WI70 in _^.='10: S no S:CS .CVC =OLiC:' Onlv C.:ydr: ?'e^aS. Bur ::SV l..i.-St.3:1 :S ve: to be _u0- C:_.^z veC3tion iL'^e. OCr:e3 Ov COti~ ^~11::~ ...:r..:.l -vtC'enC_. 1iC' :.'1C Ot.':C: .C:1iloC1S1s' Oe- n-e.:7 smoking anC a'-Ost OI 3C:':.:_Se anG __en' lCr_' V_.:eus C:Se=..~eS. _ =_C «isG=e. .:-^,^.V- v:cn ow :h_t ._ ts s.o it:r.3 cni • .:Ca1C5 '.^p rnost Or. :-:C aCse::.__ 3.?Q :e^-C: ._._ S:CS leave Ze^.:_it _ ::ar.t s _-. on - 'Nc' _ -°c' -t:f "C71~.
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f "BWr.r.ing worzplace smo.e:r.g" (Cont. from p. t0)' Now. cvc--:ne g.__ ;.c:oun-t oi •.:.•ac ct:. =ne s:::cicea c_rr spend it L}3 Ce, i^.d' tHe .^_C^.S.:.OCe:s on the sk: siCoes. OIf co'L'Se. zve ::ve Oniv two sIIOKe:S le^ on C:e D.°.3'rCll. 1.^.e :CSL a:ve alU stopt:e_." ' l,.e:C were otSle.' subCGe cC^DCIIe== in t:.e Ra'c..-* Mr.z-ic crog....rn, but I think this br.'e: dscussion raaic= c!ru the at_rcroaeZ cnaz w1s taicea. Tne pro- grua wss very succcss~:l. Not onIy d:d erzaiove=S a:zd r,:rore*s enLZusissticdi- I1Y supnort *_:c ao-srr;oici.*:g poiic:, 4ze cost ce=c__cnccs disc,.Lssea eauier in this u-dcie we:e an unapr_zec s-L:prse to McPhe:Son. "I' cid uhis iat pc.-sonzl :e'sons, be- cause I t::ougint it w2s Lhe rignt :aing to do, :oc ::^.e health and wei*:.rc o: mv cn- pioyrs. iae produc.ivity u-npact w"s cofIIDle;aiv L:ne.'Cme^ed - the savir!gS liave rei11'v beea i.:.oressive. i' snoeud l:ave cone c:is re-+rs a3o," i.e says. s e.::er;ence is onlv one zrr:ong a growing ncr.c: or ¢2su ia- Yoivir.g cocnp:nies a:*iz: no Ionge: tes.rd smokiag 2s z ne:cssarv car, aad iacon- Dr. :Zeeaor :nd i cove: z nL.-a- .. . c_ Ca.ea in ou: DcoiC, ":.C »'e ;.S~c : :cuid v.ou co n-aue : 7001' o: a7C11c31i:S Z-i.o. ~v ve- !ong to ^s =..'^.ct::y C,st',.7gL•i°i:= Cv S^ r.zrs or airsente_~-Criz. csabiiin. ea;iy :3ortzlitV, 1IId low orodtlCllv2tY. aild wi3o a:c cont:zniaa: ng the work e=riror.raeZt a.ad itacairim-g z:ne :=I::: oi ;aeicol- lea.g*ies? Or is it •.i.y.e to Iduk :7e :.abi:3 .=ot zdc:rional iar'or.rs;:on. cansal: dhe following sources: Repor, of :he • Smoz:izg cnd Hecs.h; A S;:raton Ger.ers:, U.S. Dca:r =en: oi tic3?ta. =ducaaon zad We!~:re (1979). of :he U.S. (19i-=), U.S. Denaran-ezst of C-ararae.-ce. Bureau o2 the Ce^.3L'S, P. 87. • L ~~ C:e.^•!'!~ COTiJtOae7iCtJ OJ ~1l:OR=TiZ: ri P1clic Hez:*h Se:v:ce Praver.: ve Mr-r~- 'icir.e, U.S. Public F.osirh Se_vice, Vo[. 6 (1977), pp. 2521-?64. • "Srnoking and Alcohol a Stse: A Cornca:ison of incit H€onor:ac Can-ce- queaces.,' by 3.3. L::cc =d 45.0. Sc:`.wei~er. 7,be New Fnglsnc Tcurr.--I oj' AfeaYczne, 11_r:a 9. 19"'3. p a. 569-5'1. `
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forum C Rebuttal: "Ifs, ands or butts" Why banning workplace smoking would violate the tenets of accounting practices as well as our civil liberties By j. Everett Hicks, C.A.M. Editois Note: The following ir a re- buttal to September's "Forum, " entitled "'No Ifr, Andr or Butts' - Vhy Vork- place Smoking Should Be Banned, " by IY/i!liam L Wei:r, Ph.D., CPA. ` What follows is an admittedly harsh rebuke to those who honestly bclicve chac a rule or law will remedy anything, and who ha,: e dismissed Thomas Jcffer- son's wisdom that "the best governed are the least governed." I havc long held chat the overzealous- ness of advocates of "radical" proposi- tions should be cause for a penetrating examination of any data they offer to support their condusions. I1iis approach appears to have considerable merit, view- ed from the perspective of a"dcvil's ad= Vocate." First, look at Dr. Weis's tabulation of the cost of smoking in the workplace at "Forum" ir a monthly column offering readers and informed observers the op- porssnity to air their views on subjects of interert to management. II'/e welcome your thoughts on the above or on any other topic relating to management. Send your oDinront to: "Forum, " Man- zgcmcnt World, 2360 Mary.land Rd., 'Y/::Ilow Grove, PA 19090. ~ f: Everett Hrckr, C.A.M., is.zn adm:is- irtrsttve consultant in Spartanburg, Soatn C'aroltna. $4,789 per year per smoking employee. Should any significance be attached to the fact that the figures lack the grace and favor of a CPA's formal and custo- mary certificate as to how they were ar- rived at, and to his opinion as to their va- lidity? ~' Under only cursory cxamination. cer- tain items in the schedule appear to lack professional integrity. For example, co- mingled property damage and dcprecia- tion expenses cannot be reported within the format of any income tax return I have seen during the last 30 years. If these claimed costs were applied to an administrative office of 50!employces, all smokers, the $25,000 for maintc- nancc attributable to smoking plus the ocher normal maintenance costs, when proccssed by an IRS computer. would flash lights and sound claxons of the sort that compel extensive and expensive tax return audits. The same would apply co the $25,000-plus orher ccpe:zsc of the guishcd from academic people, is mcas- ured by the botcom lines of financial reports and not by the time and cffort managers spend in carrying out their basic functions. Is rhis factored in in chc figures for on-the-job time costs? . During my youth. Prohibition was dc- saibcd as "A good law, but they can't enforce it." The absolutism demanded by Dr. Wcis smacks coo much of this type of Big Brocherism. I still have confi- dcncc that it would not be tolcratcd by a body of people with an inherited abhor- rence of regimented lifestyla. I am a firm belicvcr in the concept of moderation in 211 policies and procedurts that apply to people of diverse concepts. From the beginning, compromise has been a necessary and successful ingredi- cnc in the adoption of our Constitution and laws. They are tai]ored ro avoid the tyranny of majorities or minorities. I am also sure that the rights of non- smokers could be accommodated within non-related property damage and dcpr,c- reasonable and flexible policies built on ciation expenses daimed. (Zthc give and take among fair-minded If an administrative manager had sub-Wpcople - with no requirement or nced mittcd such figures in a budget to ccrtain~'co humor whac many might consider chief executive officers I have known m5jblind prejudices. however well they are the business world', he or she would havelPAorchcstrared. been fired as soon as the CEO had time ~ Let us,, therefore. confine our work for to cough up his cigar. dcsirablr reform to what is attainable I am inclined to ignore other czlcula- tions c:ccept to note uhat the uf eziveness of managemcnt cmplbyccs, as d:stin- through chc above process. and avoid the trauma thao would result from more and more fiau from lofty, ivy-dad'towers. 1=J Management World Qecember 1981 39
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c APPENDIX I ~
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C The Smoking Controversy: A Perspective A Statement by The Tobacco Institute December/1978
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C ~ =A II. THE PSYCHOLOGICAL WAR ESCALATES ` A voice of reason A few weeks earlier President Carter's top health advisor on the White House staff took a different position, but his was a muted voice of reason.32 He reiterated the President's observation that the public has been "adequately warned" about smoking and advocated more research into the cause of disease. And he emphasized that the research should not be restricted to tobacco. The announcement by Secretary Califano, a lawyer, was covered extensively by all the media. By contrast the position of the White House medical doctor was virtually ignored. Still another offensive launched The fact that a declaration of war or the launching of a new of- fensive can draw publicity is well recognized by the anti-cigarette forces. In 1976, the American Cancer Society announced "Target 5" (military terminology again), a five-year political and propoganda campaign to be highlighted by anti-smoking media events and lobbya ing for more anti-cigarette legislation.33 C.W Diverting the Society's efforts from research into propaganda, ~ overt and covert, the program is aimed~ directly at smokers. Its ct method is to instill blame, shame and fear among them. It attempts ~ N Dr. Selye's concern takes on additionali significance in light of the announcement in January 1978, by Joseph A. Califano, Jr., Secretary of Health, Education, and Welfare.31 He said his department would wage "the most vigorous and hard-hitting program against smoking that this country has ever had." Secretary Califano declared that the program, at a cost of $23 million in its first year, would concentrate on education and in- centives. The proposed "incentives" include higher taxes on cigarettes and further prohibitions of smoking in public places (see End Note #6). Less than one-tenth of the 26-page announcement was concerned with research, but to the degree this murky reference can be under- stood it means research into methods of "helping people overcome their addiction to cigarettes." (It will be recalled that the Surgeon General's report said smoking is an.habituation, not an addiction.14) 13
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The profound sense of alienation among the victims of disease is a growing cause of concern. The burden of proof must rest with those who advance the hypothesis. 14 to make them second-class citizens in society, pariahs in their own families (see End Note #7). The possfbilify for psychological strain among the tens of millions of people who enjoy smoking is ignored. Tragically, the forgotten ones are the victims of the diseases the health agencies purport to be fighting. The profound sense of aliena- tion among the victims of disease is a growing cause of concern. They tend to blame themselves for their afflictions, and members of their families tend to agree with them. The tactics of the health agencies can serve only to intensify their alienation at a time of deepest distress. A metaphor for hate Susan Sontag, herself a victim of breast cancer, observes: "Ostensibly, the illness is the culprit. But it is also the cancer patient who is made culpable."3 Ms. Sontag conducted extensive research into the historical and medical literature on the macabre use of "disease as a political metaphor"-that is, an excuse for attacking non-victims of the disease. She goes back to the plague of the 14th century, which in the twisted mentality of the times led to a massacre of Jews. When the plague subsided, the pogroms ceased. Particularly when magnified to "epidemic" proportions, Ms. Sontag suggests, cancer can be used by extremists to justify radical actions. It is altogether clear that this is what is happening to smokers today. The "incentives" proposed for smokers follow a classic pat- tern of'prejudice: discrimination in employment, segregation in public places, economic repression (through taxation) and emotional belief in condemnatory mythology. A question of proof On what basis can organizations be justified in their "wars on disease" that inflict distress on members of our society? In their scare campaigns, the health agencies have bot'h publicized statistical "epidemics" and provided scapegoats. They make the flat judgment that smoking causes lung cancer and heart disease. On the face of it, the judgment violates the laws of science. Many smokers suffer neither of those diseases. And many nonsmokers are struck by one or the other. Neither phenomenon is explained. There is another law of science that pertains. A hypothesis con- cerning the cause of disease remains merely a hypothesis until and unless conclusive laboratory and clinical proof can be found. The burden of proof must rest' with those who advance the hypothesis. The most insistent enemies of smoking are well aware of that fact.
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It cannot be proven that smoking has "no ef fect." 15 E. Cuyler Hammond'; Sc.D., vice president for epidemiology and statistics of the American Cancer Society. stated it quite articulately: "You can't prove that something produces no effect. You can't prove that one out of a trillion people won't get cancer from being exposed. Nor can you prove that out of a trillion people, there wouldn't be one that was prevented from getting cancer by this exposure."34 (See End Note #8.) Thus it cannot be proven that smoking has "no effect." The people who make tobacco products do not claim that smoking has no effect. This paper cannot prove and does not imply that smoking is "safe." On the other hand, it must and does challenge the simplistic transi- tion from statistical hypothesis to blanket charges to the absolute conclusion that the case against smoking is proved (see End Note #9). To dismiss the tobacco industry's position because the impossible disproof is not forthcoming deviates from the issues. Yet this arrow frequently is shot from the anti-tobacco bow. Proof as to the cause of disease is indispensable. Where is it in the case of lung cancer? The American Cancer Society remains well aware of the need for laboratory evidence because the one time it claimed to have such evidence became an abiding embarrassment. On February 5, 1970, the ACS held a news conference at the Waldorf Astoria Hotel in New York City.35 Without the customary review by scientific peers and acceptance by a reputable scientific publication-a procedure considered essential in the scientific com- munity-research purporting to show that the inhalation of tobacco smoke caused lung cancer in beagle dogs was announced to the general public.36 The study did have the endorsement of the then Surgeon General, Jesse Steinfeld, a testimonial highlighted by the ACS. It was later learned that he had not even reviewed the study before giving it his endorsement.37, 38 More important, it was also disclosed later that the study had been rejected for publication by both the New England Journal of Medi- cine and the Journal of the American Medical Association.38, 39 The unorthodox public press conference received front-page coverage by newspapers and was featured by the television networks. Walter Cronkite reported the Society's claim that "this is the first cause-effect link" between cigarettes and lung cancer in higher animals.40 03556113 ACS has never released the full details of the study for independent review (see End Note #10). The National Academy of Sciences questioned the study on the basis of four separate points that still remain to be resolved.{1 Many people mistakenly believe the "cause- effect link" has been established, and the ACS does nothing to disabuse them of the false notion which it created.42
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One author of the study, Dr. E. Cuyler Hammond, remains em- ployed by the ACS. The second, Dr. Oscar Auerbach, is an ACS grantee. Dr. Steinfeld, whose unqualified endorsement of a study which he had not' seen added to its original and misleading credi- bility, is closely associatedwith the Society. But experimental scientists have yet to induce, by exposure of tobacco smoke in animal lungs, the type of cancer associated with smoking. In the public disservice l That smoking was the cause was "a meaningless argument to throw in . . ." Grisly results of the rigid dogma promulgated by the anti-smoker agencies are beginning to come to light. One reported example in- volves BCME (bis-chloro-methyl ether), a relatively new chemical important in the refining of low-grade uranium and other uses. In 1971, a group of researchers at New York University concluded BCME is the most potent carcinogen among those it tested.43 • For more than 20 years, BCME workers at a plant in Pennsylvania suffered an inordinate rate of lung cancer, but the cancer deaths were attributed by company officials-and outside medical experts!- to cigarettes. Concerning that plant, an inspector from the Occupational Safety and Health Administration in 1971 glowingly noted in his official report that the plant had "recently completed 365 calendar days without a lost-time injury." During those 365 days, ten of its workers had died of respiratory cancer. By 1974, more than 50 employees who had been exposed to BCME in the plant had died of respiratory cancer, but the company resolutely maintained that the deaths were not related to occupation. Finally, when it was clear that nonsmokers as well as smokers were cancer victims, one OSHA doctor commented that the company's insistence that smoking was the cause was "a meaningless argument to throw in; 60 to 70 percent of the working population smokes." By July 1975, the company had settled 27 compensation claims by survivors of workers who had died of cancer. An investigative article in the Philadelphia lnquirer's Sunday magazine, Today, reported that 54 employees had died of respiratory disease after exposure to BCME. "Something else " is going on To suggest that the BCME incident was isolated would ignore con- trary evidence. In 1975, the National Cancer Institute issued an atlas showing cancer death rates over a 20-year period for each county in 16
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Statistics of lung cancer bear little or no rela- tionship to nation-by- nation differences in cigarette consumption. the United States."The patterns of lung cancer bore a highly incon- sistent relationship to the presumed patterns of cigarette smoking (see End Note #11). The incidence of lung cancer was extremely high along the East and Gulf Coasts. Commented Dr. Joseph Fraumeni of the NCI: "Something else is going on." When the NCI atlas was released, Newsweek noted that it was "called 'a surprise."' But the warriors against cigarettes seemingly ignored it and, characteristically, intensified their efforts. The atlas could hardly have been surprising to the epidemiologists who for years have noted that the worldwide statistics of lung cancer bear little or no relationship to the nation-by-nation dif- ferences in cigarette consumption.45 The smoker diversion C 17 Among the states with the highest rates of lung cancer is New Jersey, whose large number of industries includes chemicals and asbestos, widely held to be one of the most pervasive carcinogens. Asbestos manufacturers, however, have used the anti-cigarette conviction to muddy the issue.46 Recently a Congresswoman from New Jersey introduced federal legislation to enact a special "health insurance" tax on both asbestos and cigarettes.47 The tax would be used to compensate asbestos workers or their survivors when those workers have been~ afflicted by respiratory disease. Within the Congresswoman's district is one of the world's largest asbestos companies. Her legislation, it was dis- covered, was drafted by the company's lawyers.48 As the number of suspected carcinogens has grown, the number of those with a vested interest in the anti-cigarette ritual has grown apace. More than 500 worker's compensation cases are pendingg against one asbestos company.49 (The company has already paid several,5°) Between eight and eleven million workers are believed to have been directly exposed~ to asbestos and other carcinogens in their occupations.51' Attempts to spread or divert the blame by ex- ploiting the charges against cigarettes, of course, do not advance the search for the true causes of disease.
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III. THE CANCER CLIQUE C What the superstructure did was to concentrate • power in a tight little professional in-group ... When one considers that hundreds of millions of dollars have been spent for cancer research through the public and private agencies with comparatively little discernible advancement of knowledge, there is good reason to suspect waste and misdirection. Such charges have been made by people in a position to know. One is Dr. Irwin D. J. Bross, Director of Biostatistics for the Roswell Park Memorial Institute, who testified on June 14, 1977, to the House Intergovern- mental Relations and Human Resources Subcommittee.52 Dr. Bross, a well-known foe of cigarettes,53 pinned the failure of our nation's cancer programs on the administrative superstructure that controls the National Cancer Institute, and he did not hesitate to name names: "The superstructure was largely engineered and controlled by the American Cancer Society, a principal beneficiary of NCI funds. The liaison with~ the White House, Benno Schmidt, and the Director of the National Cancer Institute, Frank Rauscher, and many members of the National Cancer Advisory Board ... all had close ties with ACS. This is also true, for that matter, for proposed replacements for Frank Rauscher (who is now an ACS vice president). What the super- structure did was to concentrate power in a tight little professional in-group which then proceeded to run the Conquest of Cancer pro- gram as a closed corporation with a total disregard fo#,the public interest. "In any other area of the federal government," Dr. Bross continued, "this cozy set-up would have been regarded as very questionable or outright corrupt. This set-up is not worth revamping and should be junked. The American Cancer Society should be barred from getting any NCI grants... for the next four years." (See End Note #12.) Manipulating media Dr. Bross has been engaged in cancer research for 25 years,-4 but his grave allegations largely escaped attention in the press. Perhaps the media were sensitive to his implication that they were being manipulated: 03556116 "The programs for other environmental carcinogens are little more than public relations gimmicks, 'paper tigers' designed to reassure a concerned public that something is being done when it isn't. This is standard practice in the NIHI (National Institutes of Health). The program on cigarette health hazards is a farce. It con- sists of noisy scare campaigns which are counterproductive-like 19
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The Reader's Digest has carried anti-smoking articles written by a paid staff member of the American CancerSociety. Growing constraints on smokers are based on emotional antagonism. most of 'cancer education.' It sets up meaningless 'clearinghouses' to shuffle paper around-a successful gimmick that is now used for chemical carcinogens. It will kill a lot of beagle dogs in a cruel and stupid experiment that will tell us nothing about human cancer ..." The use of the media by the Cancer Society has assumed question- able proportions. The Reader's Digest, for example, has carried anti- smoking articles written by a paid staff member of the ACS.55 Readers were not informed of the author's affiliation, although his special interest is certainly relevant. At virtually the same time Dr. Bross was delivering his testimony, ACS was launching its "Target 5" propaganda program with so- called "forums," actually staged media events in major U. S. cities. At the first one it presented a young man who had held a hostage at gunpoint on the roof of a Los Angeles building.-16 He had refused to release his hostage until the rnedia reported that his father had died from smoking; here again, an allegation and not a proven medical fact. The media complied.57 To the ACS, the terrorist and accused felon was an invited witness whose views deserved publicity. (See End Note #13.) Stigmatizing smokers The implied objective of the "Target 5" program is to create social scorn for smokers. The implication was clear to the Chicago Metro News, a black publication that is understandably sensitive to man- ifestations of oppression. In an editorial, it stated: "If the ACS is allowed to continue in this direction of setting up 'veiled' rules for setting the lifestyles of citizens, the precedent will have been set for hundreds of organizations whose actions and programs are already suspect, to openly get involved in setting up 'people constraints' geared to regiment the people in this country into a state of terror described by the author of the classic novel '1984' in which 'big brother'. determined the existence of all people on the planet." 18 (See End Note #14.) Diffused cigarette smoke The concerted effort to stigmatize smokers as second-class citizens has been magnified into a furor over smoking in public places. From the earliest history of tobacco, the sight of someone smoking has been disagreeable to some people. The Chicago Metro News had a good reason to perceive social prejudice in the growing constraints on smokers, because they are based on emotional antagonism, rather than reason. A comprehen- 20 O G.~ ~ ~ Cn T N N
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I Men have physically attacked other men for smoking.. 21 sive review of the research into the question of so-called "passive smoking" was conducted by the American Health Foundation and published in 1975 in the journal, Preventive Medicine.59 The con- clusion: "On the basis of available epidemiological evidence, it ap- pears passive inhalation of tobacco smoke by nonsmokers or smokers does not increase their risk for chronic illnesses such as cancer of the respiratory tract, emphysema, or cardiovascular disease." Two articles supporting this view appeared in The New England Journal o f Medicine in April 1975. In "Concentrations of Nicotine and Tobacco Smoke in Public Places," a research paper by William C. Hinds and Melvin W. First of the Harvard School of Public Health, the authors concluded that measured levels of ambient cigarette smoke "would not be expected to produce the strong public reaction to tobacco smoke that has developed in the past few years." Hinds and First suggested that "annoyance from tobacco smoke is caused by factors other than the average concentration of particulate matter in the indoor atmosphere." In the same issue, Dr. Gary L. Huber of the Harvard Medical School wrote that nonsmokers' reaction to tobacco smoke may be psychological, rather than physical.60 There have been numerous reports of nonsmoker behavior that could best be described as neurotic. For example, men have physically attacked other men for smoking in supermarkets.sl Growing concern led to a Congressional hearing in September 1978, at which nine scientists testified in refutation of charges by anti-smokers that tobacco smoke in the air can cause disease. Fol- lowing the hearing, ten other experts provided additional scientific refutations to the committee. It was their outspoken contention that ambient tobacco smoke cannot cause illness in normal nonsmokers.62 Generating fear and hate How much psychological distress is reinforced by unfounded charges by some of the health and propaganda agencies, notably the Ameri- can Lung Association and Action on Smoking and Health, is a matter of conjecture. But innumerable nonsmokers have written letters to the editor stating the new shibboleth: "Your smoke is killing me." To the degree such people believe what they say, the propaganda causes distress and animosity. The frequency of such unsubstantiated charges in letters columns also brings up the question of editorial judgment. Against what group other than smokers would editors repeatedly print the unsubstantiated charge of killing? 03556118 The irrationality of the allegations is heightened by the fact that most public places are now air conditioned. A major government
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study, for example, concluded that tobacco smoke on aircraft does not represent a significant health hazard to nonsmoking passengers.63 In planes with a typical ratio of smokers, it found the air more pure than the outdoor air in urban environments. Yet the activists, not satisfied with~ the back-of-the-plane segre- gation of smokers, now want a ban on smoking in all public transportation. \ A witch trial of smokers gets public cattention. 22 Are health agencies believable? As in the Salem witch trials, a segment of society is acting on the basis of emotion when it' mistakenly thinks it has the facts. The blame for this distortion of the public interest must be assigned to the health agencies, for society reasonably assumes these agencies deal dispassionately with facts and concentrate on conquering disease through research. Society has been misled.64 The private agencies concentrate on propaganda and the accumulation of assets, only a small percentage of which is spent on research into the cause and cure of disease. 65,'66A witch trial of smokers, whether it threatens public welfare or not, gets public attention, inflames the passions of volunteer fund raisers and produces big budgets and oversized reserves in such private agencies as the American Cancer Society, the American Heart Association and 'the American Lung Association. Research into the cause and cure of disease does not. There is an independent non-profit service for contributors, the National Information Bureau, that monitors the finances of "phil- - anthropic" organizations. In a recent report on the American Heart Association, it states: "Question arises with respect to the reasonable- ness of AHA's accumul'ation of assets beyond the amount required for its next year's budget."s' Its reports on the American Lung Association and the American Cancer Society raise additional questions. With respect to the Amer- ican Cancer Society, NIB further noted~ that " . . . for many years the primary focus of the society's promotional and fund-raising materials has been on the need for funds for research for which the percentile allocation has actually declined over this ten year period."68 . ACS practices called misleading NIB also reported that ACS assets increased from $76,500,000 to $186,800,000 during the ten~ years while it was saying it didn't have enough money for research. The report concluded: "NIB believes that O W T N 1a' CD
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IJ c The American Lung Association devotes only 2.3% of its budget to research. 23 it is misleading to the contributor for an agency to state that funds are not available if this 'unavailability' is in part a result of previously budgeted allocations and not based on actual funds on hand." ACS spends 13% of its budget on fund raising, and more than 27% on "education"-a large but undisclosed portion of which is for anti- smoking propaganda.69 "Education," of course, keeps ACS before the eyes of potential contributors, and ACS spends lpss on research than it does on "education."' The handful of paid executives who run the ACS receive salaries of up to $75,000 or more per year. One such employee is Dr. Frank R. Rauscher, who left the National Cancer Institute, which works closely with the ACS, to become senior vice president for research. Because ACS works closely with the government agencies, the propriety of such job switching has been questioned.70 The American Lung Association devotes only 2.3% of its budget to research.66 The NIB report states: "Attention is called to the ALA's fund-raising costs." This attention is certainly justified. For every 2.34 ALA spends on research, it spends 28¢ on its fund drives. ALA reports that it also spends about 28% of its budget on "educa- tion." The "education," to cite one example, takes the form of a scare booklet replete with unsubstantiated allegations and dire conjecture about the effects of tobacco smoke on nonsmokers.?1 After attempt- ing to frighten nonsmokers concerning the imagined perils (no scien- tific source is cited), the booklet advocates agitation for all sorts of restrictions on smoking in public places. The unscientific allegations are dutifully echoed by legislators who have found that anti-smoking declarations get them press coverage. The ALA booklet also urges direct action~ against smokers: "Let family, friends, co-workers and strangers know you mind if they smoke." Also " . . . voice ... objections when smokers light up without asking permission." In other words, make one class of citizens beholden to another for the right to enjoy a simple satisfaction, and invoke the police power of the state to deny that right. The militancy involved' has led~ to actual incidents of physical violence. Certainly this could not be the intent of most people who contribute to an organization called the American Lung Association. They undoubtedly expect a positive approach to solving the riddles of respiratory diseases. C U1 The anti-smoking ~ ~ agencies ~ The party line has been adopted by dissident's in searchl of a cause, who have penchants for setting up organizations with acrimonious acronymns.
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` "You don't know what a rewarding feeling it is, the first time you spray a smoker in the face." 24 Among the most active is ASH (Action on Smoking and Health), whose founder and paid head is John~ F. Banzhaf III, a law school professor. Like more than 30 other organizations, ASH agitates for legislation restricting smokers. Mr. Banzhaf's motto is: "Sue the bastards!"72 The activists seem~ to revel in their sense of power, and, indeed, at times their influence is grossly disproportionate to their numbers. Julia Pendino, a Rochester, New York housewife who lobbied for bans against smoking in public places under the banner of GASP (Group Against Smokers'' Pollution), boasted, "When I went up to the legislature, they thought I had about 10,000 people behind me. That was a laugh. It was just me. I had laws passed~by myself."7s (See End Note #15.) Another example of an extreme anti-smoker organization is SMASH (Society for Mortification and Smoker Humiliation)' ' whose organizer suggested implantation of bits of explosives in cigarettes and development of a spray which would cause smokers to vomit.74 In November 1977, Bob Greene, a writer syndicat~ed by Field Enterprises, devoted his column to Paul Wright, executive director of the National Association on~ Smoking and~ Healt~h.75 He wrote that Wright is intent on building an "army" of 2,000,000 militants who will go about "zapping" smokers in the face with spray from aerosol cans. As quoted in the column, Wright said, "You don't know what a rewarding feeling it is, the first time you spray a smoker in the face. It's hard to work yourself up to the first spray. It takes guts. But once you've broken the ice, it's easy. And you feel exhilarated." Asked what would be done if the anti-smoking spray cans prove ineffective, Wright said, "Then we move on to the anti-smoking billy club." Columnist Greene found this commendable. "At last, a genuine American hero," he wrote. "All hail Paul Wright." We indeed are on the brink of paranoia. The antagonism against tobacco has degenerated into a vendetta against smokers. The on- slaught has grown shrill, even hystericali, as the frustrated militants realize that they cannot easily impose their will on the nearly 60 million Americans who continue to enjoy cigarettes. While the noise level some time ago drowned the voices of reason, millions of Americans obviously continue to smoke tobacco because somehow it provides personal pleasure. There is substantial evidence that smoking may be a safety valve in an increasingly stressful society.
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IV. CONCLUSION C Choice: A fading freedom At heart, the issue is one of personal rights. Both smokers andnon- smokers have a right to an open airing of the facts, not the monolithic mindset purveyed by the anti-smoker agencies. And they have the right to decide for themselves. In his masterful and classic essay, On Liberty, John Stuart Mill wrote: 25 "The opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course, deny its truth; but they are not infallible. They have no authority to decide the question for all mankind~ and' exclude every other person from the means of judging."76 Mill's words strike to the heart of the question: Who has the authority to decide? As historians have pointed out, the most revolu- tionary idea in the Declaration of Independence was expressed in three words: "pursuit of happiness." This was no mystical abstraction. Robert Green Ingersoll, the gifted orator who identified James G. Blaine in a presidential nomination speech as "a plumed knight," observed that "the way to be happy is to make others so;"'7 in other words, to help relieve life of grimness, meagerness and anxiety. Ty- rants of the American colonial era had never entertained the idea that the masses should have such personal rights. The efforts to deny the right to pursue the satisfactions of smoking add up to nothing less than tyranny by a minority of anti-smokers. It is relevant to note that many, if not most, of the framers of the Constitution enjoyed the use of tobacco, as well as tea. How indignant they would have been at any attempt to infringe on that personal right through taxation, restrictions and prohibitions!
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APPENDIX H C O W UT ClT~ C.j
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C i Ti>'e ^GLers Se!ecol at ?usrRass aliaTjr.tN/={l,.iaY/tJ0?~ltlrfll__2.T`'Jlirti~f/~iAf1lSflG:]Y.~ff3...:errt:.tS~7SIT*1G ± Seat:a Unr'r~zrfC/ . ~ ~... . _ . ~ . . . . i tl:e 5'Iatl StrDsC Jcurrral has rrYcr-4 that sr;ickir3 dLrfing an arn-ploy. I , 3y WiliiarZ L Weis, Ph.Q, C.Pi.1.• ga;r'cSr r=sesciar, ri't.0, ASSCcIateA'O+Zs50; ACCcuRUr,g Ass:.ct2i3 ~C.f2SSOf, ~wfc'fTez3l77'~f7.• ~: ment irztarvietN rright jeoparCLtem oriz's c:zancs of ;,einq hireG Int~ar/iewers paise 4rt a high•s:rzss situaticn. Sut a recznt sur;ey c., Saa"is ~ - pClt~.'crt'8dl"/ oj4af TpI~lC antsI~Cants Cicar?tt_s as PICys to G^.sa.^/e u e irttar• theircc;warkars, tne; ,cCrtesis'or smokers r„ay s:.c:. ~a as cismal 8re3 bttsin2ss m-cnag°rs, all Ct'Nflcrn either 3Xcrcts2 G'!; ect hiring, esp:.n- sibilityon t:'jeir•pcesentjcbs orh~v_ in tl~8 ~.'25:, stlCy'05:5 :.` :i lnt0'lI2vi°r; may ce lockirts icrscnetrir:qe+.sam They may::a (cokir.q ~cr rc^s, ~.ckars. OisCIMination ag=inst s.-.+ckars may _Ir°aC,r C2 ? MaiOr :ac:cr ih waiu• 22fnq presCeC.ive _mGlcyses. Wiu„~aLln: nC~ :'riC~llca sL:gy°s.~ng t~lat S+T1cfCers not Cnly c:.sttt'eir °iTiCloy°rs ~Tiar3 Ctlt r;r °_serf'. a :1°c!:a lc`1CG to ; empioyn;ent- artca as it is on t.he heaitAft c.`.act_. U41c:iciai sz'.ac::an L. ' 3,f.2Cv2'ac.'{Ce'2r2s_ at7d'a ICC:S at,1C'~I Cn° s' .:Ci: C: m2i ' (i7at'l2C~_rs: t0 °_St=.~"'.~i5~ Ir:C~,^,=rTG`_nt s~T.C CinS faS~:~C:I: rtS C'i°_ r_r ii.ea ?- ~ I . pr-.~crs are 'c yfrning to s:,aw a ctear oia.,. :t.{al:y ~ir~ lS clCear.'y 2.'tow ~ sr.~aicirr* ~rrso:.g,caa:~:icznts ;~ay cc:.a ~ ~ _urrrsa. ; fn-ouLsurJey; T ,, acurct?r.S2ar,1: ?r=_arncra-°rs : c!-.ccsa ncnsnckars- o•ref when i _c_,_"t wi th : c::cica _2-7.vs_r< =P."JVIScT ?~LiastV qudlne'r Z-,.'.:.i(crn-,s. :i::q I._f.ialr.cr.C, r?s..C ~~tsft0::r~~ ;.`.a~;is;cra as a:css-~__, ~~c crty cna ~r_f :rs s,:.c:<ars. iF4."Ctat'Ic"1' sTckar, Clis j:at:a ic rmClst i1aJ1 a Cnii:%:y ary:--C:I t:3e r:°`:Is We asked cur niGn3g°f5 to rnc<2 :.Vd aSaJ:'•CiIOrS iaal 1? 1,1 =dC-- ~ . • .. . . ~~. ~ ' 1 . ~~- .. • ...
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1 strongly sL'F.'port°_L: in recent stud:cys: (1) i.tseat3?Is.'•1 amCng s.T.CiCers ls approlCimately -1Q y.erc°nt i'lig;'ar 'u`an '_meflg ronsfTrnckers, ar:d (Gj 1.:e health of nonsrrekers vii*.o wcr:t arcund s.mckers is measurably impaired as a result. Civert these additional assurr,edYactors, the number choosing nonsmokers shot to 1SS out oi ~?3, leaving only 23 in t; e toss-up corner, one "no reYonse;" and one still preferring snckars. That represents a fairly clear message-to jat; seekers ',vno still s.;tcks. Widespread awareness of the additicn_l costs astociat_d',vith employee srnoking, as well as t;*e rz!atzd~ health cons2guences to co-wor4ers, is certainly only a matter of tirrs in coming. A:,paren,ly, sr,;okers siould either rind employment Guic:Cly cef:.re ulat a:Iar°_.n.ess spr eacs. plan :o outshine norisiS1ClCers in jCC-re!di3C are3s,'3r stCp s~Tickir:g. C Life, liberty, and t;1e right ;o s,.o:ce In our•Ncrkwittt Pacific northues', erpicyers vrno have or are planain5 restrictive sroking '~clic:es, we are fre~;:ant:y asked acout :re .;al ran, ifications of s.:.o:<ir.g i-.ans.%':i;h ;:rcc3r _-e.erar,ce to :,~.e tGr _r:: :-e ber.ci, we orer t`e °:;Ilo+Ning oCsarraciors. Our reading of t,`'e f°G:r2l Cisc:7rTlinaiicn 3:ZCsltes (irm tne l.:'Ill Rignts Acts of 1GA_a and tgc3 to :`a AS3 Cisc:ir..ir.aticn in =mc!cym=nt A:.t of a s.t iC97 2.nd sLa7s2qL'eat ==Q ~ ~islm'.iGnl :.:.es nct :at ~ct even ':,y^.-." rention of s~mckiFg as one of t`ose gtar_~::e_d ina!ienac!_s. ~~;e f:nd a distinCticn between 3sC:li.cd and ?C.'Je'/eC cPa,'ac:°r15i!cs„ a that is rudimentar j t0 interrr3ang L.3 c Jii in;.li3 3:aiL'tes. v Ce a'S;.ef',dl frame of reference ::or t;!a lagali;! =f sinckira ~resc:ip;icns. -0isc:irina ticn on the casis cf asc:icmd c-jerv,nicn an has !ittle cr no corarol-is ;enerally alegai. .asc:.__-d a:.:;tu:es inet,_== 22 3ui-=?VtSC,at' `d:: V.:::_.`a _••-
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t;7e issues cf race. c.:lcr, sex, natfcnal crisin, ar :_,_,ed. Achieved qualities, on tre cG.er nanC. ar.e t`ose upon wr;ic: _rr:plcyQrs traditionally discriminate in choosing aec!ica„ts ior employment. rm- plcyers are generally within their leyal'rig`ts to sz!ect canCidates on the basis of such variables as ¢rior wor!c ex:erience, academic c:ac=ntials, employer references, or personal grccming. Ccnceiv=_bly t,tiis could be extended to include smoking. Smoking seems to us to be an ac4hi_ved • behavior, just like wearing sweat ctothes in the ol-4ice, shooting spitbails at colleagues, and having ; v1o-+iour t;nra_-rnartini lunches. i nat th: prac- tice of s.m.o:cing bec:-me conmcn during the last 73 years, promoted initially by the near icrcr-iending (or fcrca-s.,ckinC) of CouCi'dcys dl:ring tiVorld Wzr I, does nct make the oractice any less ac'r,i2ved. ine right to smoke, both on and orff tine job, dcas not seem to' be guarante°d'cy any civil rights stztet= currently in ;orc2. `{Va rers;,nally doubt'that this •:+ilt chanye, =_s:.eciaily in li5htof :he :{nv:m ccrsaquancas at smoking~to prcductivity ar.d c^.-r+or'i=r health. 'if you were cn t.hA Sucrma Ccur'. .. : Jinc3 ti °?cOrcri3iC ,zr:'3iiica-tiGns ol a'Cias aqaif:<_t zmciC2rs c:ulV ::a. to'say the laas:, substan;ial ?o t~a :ot: _=Cco i,:c_s:r,.,'.va =xo:c; a cest case i'J ''.'.° thrL:st upon th3 (r::S.'~JUCrcm- _ C:.C:rt'.YiuhIn :`e I'°:CT :efa'/2a.rs. 3it:.er at the init:atlY9'Jf ute tCCnc::. Ir.CusiC/ or,^.n _:,C22.l irom sn aQy.-ie`Ier em,clCyer or ?rt:Clcye°. :Ve asked cl:r ,^, :niing-a:lI 0i Saai::a iT.arag2rs iC place themselves an a~',y,,-o:,',:ticai JI:Cr?f'3 COl:.-t. c=_iCir:g an ?rOc=a: iiorn an an".Olf,7y°r :YCo'.Vas C.2aie ;~a riC'y:n; ,o ~an s~T.c:<in7 Cn c3r'~2ny premises by a!ovJercalr;, and fr(Jr7 an °.T:o1 :y3rw~.o'aZs c3niet! 'na riyn, ;a f1ire nonsmClC°rs _x_a;siveiy.
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I ax^lain to al[ apMllC :ra :`at _.,•okir.; is _~sclu:'ly prani~aad on C:n1QSnV }:c~r iiseS-~X_°at:n ir:° G3:'~~i.t~ idt cu'!:nf'y ~r°=~'~3. '`-sen sa2!°~ ih~t ' ~i~ ~ ~y :rC:r•g ~ ~t'~~=ar. cur ,^!?c~ sr.cs a„e ' ~itraticn .s:a•s l:r•,;cn. it one can7t iiv•s aith :ha: poiic/, ,han it's __s. ; a ; •ic:'.:rd =cyC in: 3e fd Co1_: +'-cr:tand C Our policy cn hiriny srnCkers is r :imp!e: `,''= don't. Scok_rs need not bother to acpiy. • - 1Narren %-lcFl•ersc,n President PaCar =1ec:ric C:.rpariy .c,•2a:tlz I employ no person who srnckas cigarettes. iMomas Edison In a lett.r to i-lenry =ord, t9t 4 Witit no preconceiv~ nations acaut a~sent=eisn cr zonsmcker healtti e'r,'ects, the managers r=versad ':Te Io••v_r c^L:: ruling dy a:.c to 31 p_rcent mar5in, pr?ser/in^y the =rn7!C;/er's riSh; io~tZn S;rCklng cCn!:pC2tel/ ~-Mrn compzny premisas. Cn the issue oi' hirin, rcrsmckefs =xc!usiveiy, Out sample of hypothetical judges he!d °cr tne lower c:.urt by a 32 to 3' percent m"drgIn, thus d°nyi4 t~e em-P-!0%er'S rigf~.t ia n1re Ci:J kers. ,, ti~Vhen we adda4 the a5s:~:moticrs a! incra!-z~:=l aisa,-:5~~sm a~ . . ` . ,~° "°r•5 fC'.°_G~ i~C TO O t0 : ~ in iaYdr VI„f nansmcker ~~=a1~`: imYairr„e:,., .,._ fil2nca_ •5- the rrrmployer's right'o can sr;,ok:r.; c^r.ple*.=ly'rom ccr;.cany ?rar^aas v°f3 r~Cl7l't i7 ilir3 C:l`) ;•.7nsmCk~rs. l ne and 118 •.0 105 ~na a er,.^1^-- ~ -,-irrs.•:t' •- VotB against re5: iCi nt'y ~;irin5 :c cnty ncnsric:cers. -0m t@i.^+r'- a'>d ttie assumpttOns, 3?er.^.s to us tC re'I:c' a Ci`Iil rigClt•5 C:rSGiCL•5.'.°53. ?r:i~ SC:LT.in_ti:.il It!Y3[:Cn ~.i ^2=• 12einCg esv2cially sensitPle :J the i3wyears, managers ~c1e~:C-1cu1t;~ ~~li2vir'S, :^at sr'c" 2r5 Can __ si.. ~ly turned away at ti'.a errrItcyr-ent ~, _n a,_ -- - In curtiraJ Cues:icnNe --sk°'r `:`e ~'°rs . '.. ~ ?:CC•.:~SS
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C Mii tC'daS Within cursarnc!e ot m. _r:-_ar-, ':r_s a sLbyrcup c: :cp tN_ sxec::- 's-;1 "r Oi • .`'` "" . li•r..~n :. ` ex=c :: , c_3 .^rR ^ars.^.nisai' ii i5 to sa-° ':IR-=1 t~.eir :°,Cici..Qes :ere. t'fior tG any 2ssL'rRpt1c-15 cit-cut ai3sente°_i5Z and CC-work=r h.d,.aiut .' ~ =Gac:S, 14 Cf w `r1O 20, Cf lt7 ei~-., ,r r ` ... '^.crC .l(',lad~ hlr a RCns~~,Cri~r over a smoker if other attributes wpra subst_ntially the same. 7ne remaining six viewed the decision as a toss-uo. None Lic:<ed t;!e smok_r. When we asked the execcaives to assu.._ coty the hisher acsen- te--ism rates and t;;a health erec:s on rc.ns..ekin;, _a•',vcrkars, all 20, 1Ca percent said :41%e! •.vcuid'c:i-cese ncnsr:,ck_rs-sor-.,e:hiny to think aLouL one of three alternative ro!icies r=garding smoking a*t their respective organizations. Of the 223 respondents, 74 preferred a complet_ ban on smoking,123 pre;arred separate areas fCr smCkers and nCRsm akers, and 26 preierrad no restrictions. `1`!e celieve ttia: an c3 percent preier_ncs [or either a ccmotate ban or for secarate sn*.ckinglnoRsmoking areas re?re- sants an imoar:ant signal from crg ::,izaticna! policy makers. Implications The results of our surrey surrrsed us. Y: ithout tip pi.ng rsscondan;s :o t}]e r7ur^ose of the survey or to u al.own costs c, ~d~ '.eaith i,=.Ct:.tS, .~.3.= percent reported u at t~ey Were already diSC.-L;:inStir., 'cg2i'si 3i:.CkarS at the hiring ;;cinL And 8a.3 C=rcent ircicated =ir intention to C:isc^r,i• nate if the at:sant_eismand cc-wrorknr health 3ssumrotions ".:rn out to :.s ttie. inieres:ingiv, in a recent re,.^..7rt meSsUriry^ t~e C3sis of smC:<intJ ai the workpiaCB, incremental c`;:sS:^t°_°is,:r-wi7ic:1 '-vas Zne oRly assumed in aur study-was ::':° iaaSf 3igIltttCani C'si3~.^rias of cost savings from banning smc!cing, reprasanting ccIty =.3 carcazt ai t,he total ex;ec;rd savings ;zom imcier?.,eqt;n7 a strict .rc-srr.ck:nS ;:c1icy. What will the results be ah°n managers are asxed ta assua-e tne i;uil packaCle af c.']st c.^.r!seC,l1e,'.ces? C'ina can vn:y sCe''.i:i2te. .:ut itl :`-3 meantime. think Invice 'Cefore accepZiny :Sar=; es ;.cr:r - •eb in,ercie'rrer. A ncnsmcker may ce •.raiting in ;;.e i.ail':ray. 3 C
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APPENDIX J C C~7 C!1 C1'f . C5~ (o
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0 ~-~ im ® !`S -~ @ P--~ - -e ~ - > x x e ~ s ~ -C ~<^- w-'y a. Legal Aspeefs oF SmoF ing in tke Wor~,plaCe By JOHN D. BLACKBURN John Blackburn is a Visiting Assistant Professor of Business Law, Indiana University, and Assist'ant Professor of Business Low, Ohio State University. GG-- HE EVIDENCE IS CLEAR and overwhelming. Cigarette smoke .~.. contaminates and pollutes the air, creating a health hazard not merely to the smoker but to all those around her who must rely on the same air supply. The right of an individual to risk his or her own health does not include the right to jeopardize the health of those who must remain around him or herr in order to properly perform the duty of their jobs."I So spoke the Superior Court of New Jerscy in 1976 in the case of SJtnnp v. New Jersey Bell Telephone. Judge Gruccio based' his decision in that case on the common law, that is, nonstatutory law, of \:ew Jersey. He granted an injunction dema.zded~ by an employee of the ~e~c Jersey Bell Tel'ephone Company that banned all smoking from work areas, indudina ofsice and adjacent custocier service areas. More will be said about the Snimp case later. However, this is jus+t one as•pect of the legal rights and duties that employers may face when confronted with the issue of sraoking in the workplace. Certainly, the legal aspects of smoking iri the workplace must not be slightc*d. Itiot only may smoking be unhealthy, ineiricient, and costly to businesses. but there may also be a Iegal duty, eniorc=ble by e:nplor-.ees, to prohi3it or restrict smoking under certain circumstances, as in the Sa:,nP mse. As will be seen, the general rule as -to smoking in t`te worlkpIace is, bluntly, that there is no general rule. Although the law is clear on the legal responsibilities of emptoyers as to da.rna..ge cau_ed' by the cou:- bustion potential oi a lighted cigarette, one can only speculate on le~z~ rights as to the effects of at:.aospherie ci;arette polIiition. T,-aat is, employers generally have a duty to post and enforct "\,o Smoking" E,,~ ' 145 NJ Super. 616, 363 A2d 4(1'8 (1TJ SupCt, 19a). 1976-1977 Oc HD ~ 2I,,42L ((A Q 1910 bJ 7okw D. Blxi.b-rw. ~ ~~ 56.4 Septer.+ber, 1980 •. Lcbor L cw Journal •`t--,"~ :Y~-•~yc~-~
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sib s-near combustible materials,= and injury caused by carelessness with matches and cigarettes is generally compensable under workers' compen- sation acts.s But what of the annov- ance, the inconvenience, and the phys- ical injury to nonsmokers caused by so-called "sidestream smoke," smoke from the Iil;hted end of the cigarette or exhaled bv smokers ? To begin w.ith, there are generally four bodies of law that touch on this subject: constitutional law; federal stat- utorv and administrative lart• : state stat- utory and administrative law; and common or case lau•: The foIlowing discussion focuses on 'the issues in each of these areas. Is there a constitutional right to prevent persons irorn smoking in work areas ? Although not directly consider- ing the issue, two federal cases seem to have resolved this issue, and the an- swer is no. In Gasper v. Louisiana Stadium and Exposition District,4 the plaintiffs alleged t"rtat state acquiesence in the permission of smoking in the Superoome violated first, fifth, nintlt, and fourteenth amendment rights. The court dismissed the first and ninth amendraent claims with little discussion and then considered plaintiffs' daim~ that they were denied liberty without due process by the state's permitting a hazardous substance, thai is', smoke, in state buildings. The court said no : liberty rights are subject to reason- ' See 29 CFR 1910.108(f) (4) (dip tanks) ; 1910.107(m) (2) (organic peroxides) ; 1910.- 109(e) (1) (explosives) ; 1910.106(d) (7) (ui) (combustible liquids) ; 1910.107 ('t) (4) (ai) (powder coating areas); 19]0.107(g)(4) (paint spraying) ; and 1926.151(a) (3) (con- struction area 5re haards). ' Annot., "Worl®en's Compeasation : Coai- pensation to Workmem Injured Througb Smoking," 3 A. L• R. 1521 (1920) ; Annot., "L3ability of Master for Damage to Person or Property Due to Servant's Smokang,'1 13 A. L. R 997 (1921). Smoking able limits in public. The court re- iuse& to create a: constitudonal' means "through which an individual could~ atternpt to regul'ate the social' habits of his neighbor."° In the secondcase. Fcdcral Eirrhlotiees for No~-Smokers'' Riqhts (FEl1'SR) z~. Unitcd States,6 the plaintiffs, a group of federaI' employees, claime& that per- mitting smoking in offices and hall- wavs of fede.-a1, buildings violated con- stitutional'' rights. Tne cour; in F E:1'SR easily dismissed this constitutional claim, relying on the Gasper decision. In, sum- mary. then, constitutional claims have little or no merit. One last constitutional aspect deserves mention, however, and that is smte con- stZtutions- Both Illinois and Pennsyl- vania, for example, guarantee individual rights to clean air and a healthiul envi- ronment.7 What application this may have to a right to breathe smoke-free air is open to speculation. Federal Low Obviously. the Occupational Safety and Health Act of 1970 is the most important federal law in~ the area of employee health and safety, since it applies to almost every employer ex- cept the government.s But, since the OSH Act expresslr states that it has no effect om other s:aturory or common law,9 a few other feder aI aspects must be mentioned.. - First, federal agencies require sepa- rate seating for nonsmokers in inter- ' (1976), 418' FSupp 716. ' Ibid. ' 446 FSupp 181 (DC Dof t, 1918), 1978 OSHD 1; 22.575, aff'd 598 FZd 310 (CA DofC, 1978), ]979 OSHD 1,23.510, cert. denied (LJS SCt; 1979, Docket No. 79-147), 100 SCt 265. ' See Comment, "Toward Recoga-stion~ of Bdonsmokers' Rights in Illinois" 3 Lor. Chi. LJ: 610 (1974), pp. 616, 617. ' 29 USC 652 (1976). („~ '29 USC 653(b) (4) (1976), C!1 C11 ` ;r2-~ . -....~i ~~..~.~s+CS_t . _ ~ 40 ~s ;•• • s :csw •A 4~.~,Z ~
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.~ ~~. state public convevances both on landlo and in the air.11 -These agency rules mavy azect empiovees' rights to smoke- iree air. The Association of Flight Attcndants with the help of "Action on Smo?:in, and Health" or ASH. a Washington-based antismoking lobby, are both fi~hting to ban smoking on rrll flights at al1 times.1= Second. the Equal Ernployment Op- portunity Act and the National Labor Relations Act disallow certain types of employment discrimination. Although one could discriminate on -the basis of smoking/nonsmoking for the purposes of hiring without adverse effect,ls an emplorer cannot under Title VI'I dis- -criminate against female employees by permitting only male employees to smoke.l' As to the t LRr'1, one case, Central Merchandise Co. v. 14 LRB,1s 'has held that a dischar ge of an employee for smoking in a bathroom stall, taken together with all other evidence of antiunionism, constitutes a violation of Section 8(a) (3) of the NLRA, that is, unlawful discrimination based on union animus. Another case. Butcher Bot~ Refri~erator Door Co. z% jVLRB,la held that the imposition of a smoking ban in work areas, again, alona w-ith other evidence of antiunion fer-lings,- constituted an unfair labor practice. in violation of the NLRA- "49 CFR 106.1 (1979). ~ "14 CFR 1B2-7 (1979). "">Ionsmokers Extend Fight Against ~~ - Smoke-Filled Rooms to Their Jobs, C1Jru- han Sci: 3foniror, April 18, 1980, p. 10, col'; . 1. "Comment, "tiVhere There 's Smoke. There's "-- Ire: The Searah for Legal Paths to Tobacco- '~' -- Free Air," CoGnn_ 1. En:rrf'& L. 6Z (976), p. ' 105. `~ ~ •• 1973 CCH EEOC DECISION'S !f,6165. " 471 F2d 809 (CA-8, 1972), 70 LC q I3; Z't3. ~ " 2°0 F2d ZZ ( CA-7, 1961), 42 LC 116,904. '•1.,'-+d.. Secon 634 (b). "29I:SC634(a)(1), (Z) (1976). ~ 566 Duties But what oi the OSH Act? There are two distinct duties of employers and a corresponding duty oi employees. Employers first mttst furnish emplby-ees with a workplace "free from recog- niscd haso.rds causing or 1i:Z elv to cause death or serious,physical' hanst to es:r- plovcrs" and second must comply «ith all OSHr1 health and safety standards." Emplovees. in addition, must comply ~•i•th ZIi OSHA ntles.'9 Are the atmospneric effects of smok- ing a recognized hazard likely to cause serious physical harm to employees? Commentators and courts19 generally agree on four criteria that must be present to trigger this duty. First, the hazard must be from a condir.on arising from employment. Second, the condi- tion must be generally recoa ized in the industry as a"hazard," and the employer must know, or should know this. Third. there must be a causal con- nection between the condition and the likelihood oi serious physical harm. Finally, the hazard must be prevent- able in the course of business. If these four criteria are met. andi there is no authorityy either tiLay as to smoking in the workplace, the employer has an absolute duty to remove the hazard. And what of the P.-nplover's duty to eomply with OSHA health smndards? "Brcrtna>: ;: Bu1ltr Limc and Cnnent Co., 520 F2d 1011 (CA-7, 19i5), 1973-1976 OSHD }119,967; Brennan t: ReA E`rrrtss, Inc., 493 F2d 822 (CA-2. 1974)„ 1973-1974 OSHD 118,692; BrcnJras r. OSH.3 (CA -B, 1974), 494 FZd 460; OSHRC ,:. lVatio,;a1 Rcalty and Con.rtructaon Co.. •i89 F2d 1257 (CA Do:C, 1973), 1973-1974' OSriD ",17,018; .12ore "The General' Duty Clause of the Occue_ a- tionai Health and Safety Act of 1970," 86 Harr, L. Rev, 988 (1973) ; and Co -ne-.t, "Torts-Nonsmokers' Rights-Duty of E_-a- ployer To Furni„h Safe Work:ng Ezviron- ment Will Support Injunction A;ainst Srnok- ing in the Work Area;" 9 Ter, Tech. L. R er. 353 (1977-78).
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. OSH,,k regulations=0 list many toxic substances prohibited irom the work- place based on an employee's work per hour basis, in particular carbon monoxide. Although no legal challenges have appeared as vet,=t several com- mentators have noted that cigarette smoke releases carbon monoxide and other toxic gases into closed areas in amounts that clearly violate. OSHA standards.== Several problems arise with an em- plovee's use of the OSH Act to en- force his or her rights, however. An emplovee can report violations and be protected from discharge for doin- so,"-3 but no private cause of action exists to enforce the Act.24 Only the De- partment of Labor has such power. Further, as stated, an employee has the same duty to obey all OSHA regu- lations, thus providing a possible out for the employer challenged by the nonsmoking employee.=s• Finally, prob- lems with bureaucratic machinery, OSHA staff size. and measurement of toxic substances alI cut into the Act's practical uses.zs State Law Many states expressly prohibi*_ smoL ing in public areas and state buildings, and, .n•hile such laws do apply to cus- tomer service areas, they have little or no application to the ordinary work- "?9 CFR 1910.1000. 't Comment. cited at note 13, p. 104. " Comment, cited at note 7, p. 626 ; Cotn- ment,, cted at note 13, p. 64 & note 68 ; Casn- ment, "Legislation for Clean Air: An Indoor Front," 82 Yale L. 1. 1040 (1973), pp. 1044, 1045. "29 USC 657(f) (1), 660(c) (1) (1976). '•FEIVSR v. U. S.. 4-:6 FSupp 181 (DC DofC, 1973), 1978 OSHD 1Z?,575; Ruuell v. Barrtey, 494 F2d 334 ( C?.-6. 1974), 1973- 1974 OSHD V 17,506. " Comment, cited at note 7, p. 628. "Ibid:, p. 629: Camment, "Legislation for Clean Air : An Indoor Front," cited at note 2Z pp. 1048, 1049. place.=r Other state statutes gvaran- tee the handicapped access to public buildings. T"rte "Action on Smoking and Health" lbbby., for one. is push- ing for acceptance of the employee injured by cigarette smoke, by aller- gies or othenvise, as a handicapped emplbvee.za In one recent case, GASP v. :tifeck- Icnburg County,=9 the plaintiffs claimed to represent a class of handicapped persons stricken by allergies and heast disease when in smoke-filled areas. Thev demand'ed that smoking be banned in all' public facilities to achieve full and free access by handicapped persons. Although the court dismissed the claim because "handicapped" wras never in- tended to include all persons adversely afrected by smoke, the court expressed no opinion on a class of persons af- flicted with a particular disease, for example, emphysema. Finally, there is workers' compensa- tion, but again, while it compensates the employee for damage caused by the combustibility of cigarettes. com- pensation for the atmospheric effects of sidestream smoke is required only if an "occupational disease" is contracted or the employee is "injured." Aa occu- pational disease must be peculiar to the employment, arising from some- thing that that employee is not ordi- narily subjected to away from e:nploy- ment.so '" See Ohio Rev. Code Ann., Section 379L- 031 (Page Supp. 1980) ; Columbus City Code, Chapter 2563 (1973) ; and Commcnt, "E°n- ployment-Employee's Right to a Safe, Healthy Work Em.-iron:aent-Iniunction Is- sued Prohibiting Tobacco Smoldng in O tCices and Custvmer Service Ares on Employer's Prem~ses," 8 C:nn. L. R<ro: 579 (1977). " Sc¢ note 12. _. q2 NCApp M SEZd 477. " See. e.g., Ohio tions -t123.54 (Page 68' (BB). (`'CAppCt, 1979), 256 Rev. Code Ann., Sec- Supp. 1973) and 4123: Smoking 537 '=- ~ - 7 ~ + .{ ` ...~a--~,~~~,+ ; - ~~t~'~ ?~.~"a,,~ , ~ -~ ~ ~~ ~ ~ r ~ ~ ~ =~ ~'a ~-~ -9 >;- ` ty; 4 = ~~
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An injury must be in the course of and arise out of emPloytnent.'t' Un- less the ernpi.o)-.ee can prove that his iniurv from sidestrea.m smoke "arises out of emplo-,-ment." his chances of success are slim. 'More importantly, a complaining employee would rather restrict smoking than be compensated' for physical d'amabe.3Z Common Low Is there a common law right for an employee to force an employer to re- strict smokin, in certain nonwork areas? The Shimp case says yes, but there are several circumstances that may limit its application to other cases in other ]uTlsdictions. - An examination of what the court di& reveals the case's limitations. The -court started with the indisputable duty of the employer, in most jurisdictions, to provide the employee with a rea- sonably safe place to work. From this premise the court looked to four fac- tors to see if permitting smoke in the worl.-place was reasonably safe. First, what was the burden, or the cost to the ernployer, of preventing smoking? Second, what was the seriousness of the harm to the empleyee? Third, was the particular harm foreseeable? And final- ly, had the employee avoided the harm? As to the burden on the employer, the court found that smoking was not necessary for the employer's telephone business. In particular, it was unnec- essary for what this employee, a re- ceptionist, had to do. In fact, the employer had already restricted smok- ing near sensitive machines. The em- ployer could easily, therefore, further restrict smoking to non-work or. eat- ing areas. "Tbid., Section 4123.01 (C). " Comme^.t, cted at note 27, pp. 3H2-93. centa,e of the population. Hefe, in particular. the em~lo.•ee surier ed fr om eve, nose. and throat irritations, head- aches, and nausea. Third. the court found that such a reaction bvy nonsmokers %vas reason- ablv foreseeable bv the employer. And finailly, the court found that the plain- tiff had to remain in one area and breathe the smoke to perform the job. All these facts, including the fact that' the plaintiff tried "every other avenue open to her" to get relief. added up to the clear equitable power of the '.\e« Jersey Superior Court to enjoin smok- ing from work areas. One can perceive, then, that Shimp -is made up of many important facts, the absence of any of ~tihich could persuade a court to find differently. Further, this is not the Supreme Court in New Jersey. nor has the decision been fol- lowed bv anv other courts in 1 ew Jer- sey or elsewhere. Moreover, there are several things the V'et;• Jersey court did~ not consider. It did not consider the cost of allowing employees extra time off to smoke.33 Furthermore, although the court held that the plaintiftff did not assume the risk of her injuries by sta}ing on the job. the court did not con_ider titi hether the ernploy er «-as liable under a fel- low-servant rule. That is. when an- other employee is negligent in smok- ing near 'the allergic employee, the common law states that the other em- plovee's negligence wipes out the em- pPover's negligence. Finally, the court's use of an in- junction in this area is unwrecede^tted.34 Injunctions like the one in S%:irnp are. relatively scarce ; the courts look for irreparable injury, clear rights, and absolutely no other re:nedies. O "New.r.verk (Dec. 8. 1975), p. 35, Com- W . ment; cited at note 13, p. 65. • (f1~ °s Comment, atcd at note 13, pp. 92-93. (fl September, 1980 . 01~ Looor Law Journal E.a W r:+
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~~~ ._+s` 9 ~ !t.w e- r ~ .. ~ -~ .r. ~ KI Two other common law remedies state's en;orcement agencies. This act deserve mention: nuisance and bat- wouU fiat1.- require the ernplio.•er, in rerv. Most commen:ators aL•ree that ana- indoor workplace where two or a person has no cause of action to pro-• more persons are eainiull!v emplot•ed6 hibit public srnol:ir.g on grounds of to designate areas where smoking is private or public nuisance.35 As to prohibited and pe::nitt'ed, such that no battery. however, one employee in North harm, discomfort, or annoyance occurs Ca, olnna is currently suing his cigar- to nonsmokers. This may include a smoking supervisor on the grounds that complete prohibition against smoking, he smoked in an area close to the construction of partitions in the w.ork-. plaintiff emplovee, intending to dis- - place, or, when employees must wait cornfort hitn•'1 Such an intent, how- in line, a"smoking" and a"nor•smok ever, is hopefully the rare case• ing" line. Although no action has been :aken Conclu5ion on the proposed federal act. 'Minnesota ~;~~ ~ As can be seen, the issue of wheth- and Utah already have statutes restrict- p in or rohibitino smoking in all work- er an em 1'ovee has an enforceable g p = right under the law to a smoke-free places "where the close proximity of environment has no certain resolution: workers or the inadequacy of ventilarion It is submitted that the answer lies causes smoke pollution detmim_ntal' to with the legislatures, where elected the health [and/or]~ comfort of non~- representatives can balance the inter- smoking employees,. 3° \o cases have ests of the nonsmoker against the smok- been decided under either of these stat- ~-~ er to produce reasonable accommoda- utes, however. ~~ tions for both. For this reason, both a The large nercentage of smokers in ,. Federal Indoor Clean Air Act3' and a the population, the increasing militancy -Model State Smokina Pollution Pre- of nonsmokers, and the growing in- ~ vention Act39 have •been• proposed. terest of businesses in providing smok- ing cessation pro"-rams and adopting Tlte proposed federal act would be smoking prohihitions im their ernploy based on the Clean Air Act of 1970, ment -policics all point to the need for different in that the proposal concen- an adequate le.-al toundation for this trates on the three major sources of Given the uncertain sta;e of the area . indoor pollution : cocking, heating, and taw on issues involving smokinQ in the smoking. The act would cover all busi- workplace, what is needed now is leQ- nesses involved in interstate commerce. islation that offers a fair balance of Activities regulated would be vent~ila- the interest of smokers and non;mok- tion per room size. the tumber ot oc- ers alike. Both the proposed federal eupanfis, and tlte range of polluting statute and the model state statute agents, offer balanced approaches and should The proposed model state act .could be given serious consideration: put the control in the hands of the [The End] x~~'~`~-'r `' "Sce- aR, Axe!-I ute. "L egislatian ,ag-ainst ".1fcCrockrn n v. Sloan (Snxr[t M ecklcst- Smoking PollL.ion" 6 Envs7 Aff. 345 (1978), burg County. N. C.. 1978. Docket No, 75- pp: 354, 3>;; Comment, cited at note 7, p. 4270). 618- and Comment, "The \on-Smoktr in " Comment, cited at note 26, p• 1050• CC~ Pubiic• A Review and -Analysis of Non- " Axel-Lute, cited' at note 35. p. 369. Smokers' Rights," 7 San Fernando Tla11ey L. "Minn. Stat. Ann_, Section 144.414 (1975) Rcv 141 (1979), p. 156. . ("health and comfort"); Utah -Code Ann., Section 76-10-1~06 (1976) ("Sealt;n or cora- ~ fort " )- = ~~~. Smoking 569 .~7^'7f-:N ~> -
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APPENDIX K C ~
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/ZZ'2 qS 6- 4 C.r'w v r.:d v In the Matter of W-AZE` HILLS REGIONAL ED"J CA T10 N A.S S OC InT I ON , Petitioner-Respondent, and - BOARD OF EDUCATION OF THE W~~.~.EN u_TLILS REGIONAL EIGE SCEOeL DISTRICT, Respondent-Appella:,t. SUPERIOR COURT OF rr.7 d-::R5ZY_ APPELLATE DIVISION A-5711-80T2 Argued on Octobe: 26, 1982 - Decided HOV 1~1982 'aefore Judges Pressler and Trautwein. On zooeal from a final decision of the Public EmploymentRelations Commission. David A. Wallace argued the cause for the appellant.. Arnold S. Cohen argued the cause for the respondent (Rothbard, aar=is & Oxfeld, at- torneys). Public Eapioyment Relations Co.~:_ssion filed a statement in lieu o= b=ief (Sydne.y H. Le?^.mann,Genera? CoL:.zse L• Don ..crowitc, Deputy General Counsel, on the statznent). PV-1 R CIIR IA.M This appeal challenges the propriety of a final decision(o Gj of the Public Employ:nent Relations Com.mission IPERC) i n a ~ 0~ scoae of neSotiations.proceeding conducted pursuant to the W New Jersey Employer-E.ployee Relations Act, N:_J'S.A. •34:13A-1 t se , .6a.... .....- .._- - __
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The controversy presen ted to ?'_:~.C had its geTesis i.-n a ` Tesolutie^m adopted by the Board cf Educztion cf ~i11s Warren Regional =-igh School District (Board) setting a policy ing smoki ng on Board property by anyone at anv time e:fect:ve September 27, 1976. Our review of the record discloses that the absolute pre- hi•bi tiorn of smoking effected by the Bodrd' s resolution arose out o+ student unrest a-nd dissatis:3ction wi th a prior po'_icy of t: e?.oard that had totally prohibitec students from smoking w:lile per-..ittinc teachers to smoke in certain designated areas of the Board's property. '?'he students sought the elimination of a double standard contending,that such elimination would re- sta w in a.^n i,«prove:len t in student-tezcher relations and -s _uder:t disci_ 2ine. - -The Warren Hills Regional Educational Association (nssocia- tion) filed a grievance on October 14, 1976 on behalf of teach ers . ?To= grieva-nce steps the matter proceeded to binding arbitration invoked by Association pursuant to Step IV of the-g_ieva.nce pro- cedure set forth"in the collective negotiations acreement (Agree- 3ent) then in effect be-t-;een the Board and I.-he Association. Des- pite the noard' s conter,tion that control of smoking was a_non- ne'c_otiable mazageaent prerogative, the arbitrator retained juris- diction and held that the matter was one subject to arbit_ation. The arbitrator concluded that the Board, by unIlaterally banning teachers from smoking in~ previous ly designated areas, had 03556138 violated Article IIE of the Agreement and ordered.the Board to permit smoking as theretofore. A_rticle IIB provided that "... propoved new rules or modi+ications of existing rules gove_Tning 2
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work:= conZitions shall be negotiatec with the majo_itg rep_esen- tative before theyy are estzh.lisbec." Subsequently, the Boa_d, filed a cor..-laint in the Law DiLision SLperi-or Court seeking to vacate the arbitration award anc _ thea woved for sur~a=y judgment. The Association responded wi ~ motio:~ to confira the arbitration award. The Bozrd's motion was denied and the Association's granted with the award con=irmed. The 3oard appealed to this court where, on May 9, 1980, we vacated the Law Division judgment cor.fi:.ainc the arbitration award and remandEd the matter to the Law Division with directions t_}lat the matter be transf err ed to P»~C for a determ~i nat7.on o~ the scome of necotiations issue raised by the 3oard.. 3d. o` ~~. Assr.., Docket No. A-4778- 77 . of-Wa-•en Fills Rec'i s.S D^stj v. Warren Qills, Rec'1. 3d. PERC was corifronted on the one hand with the Board' s con- cern :o_ the health, safety and welfare of students, certainly a manacerial prerogative which cannot be bargained away. 3c .of Educaticn Bernards TD." v. Bernards To. Ed. Assn., 79 N.J. 311, 321 (1979). lraplicated, on the other hand, was the proposed depr: vation of a customary privilege, indeed expressly permitted in a policy created by formzl resolution of the Board, intimately related to terms a.d conditions of eanplZoymen t and consequently 03556139 Wrile not expressed in precise terms of "subtle balancing" when choosing between these two contending theories, we are satisfied, after a careful reading of its decision, that PERC gave due consideration to them before deterrr.ini ng~ that the a matter of collective zecotiation. 3
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crievance concernec a t6 w and conZition o=.er.plovmer.t z -=whic} - was r,andatoril: ' negotia:le. We agree _anc a==i-=.,; su:o- __ stantia.1ly for the reasons expresse: in the _w.ritten tiz,a.l de- ci sion or PERC dated July 21, 198.1 and issued July 2c, 1981. - Accordingly, the matter is re.,anded to the Law Division _-for the entry of a judc:nent confirming the.arbitration award. We do not retain jurisdiction. -a-
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APPENDIX L ` ~
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Cr. C(, c0, T 10), PROCEEDINGS AND DEBATES OF TIIE 97' J CONGRESS, SECOND SESSION i ~ j'ol. 128 WASHINGTON, THURSDAY, DECEMBI;It 16,1982 No. 149 Home of Representatives WHITE-FROEB STUDY DISCREDITED BY SCIENTISTS HON. L H. FOUNTAIN OF NORTH CAROLINA IN THE HOUSE OF REPR£SENTATIVES Thursday, December 16, 1982 Mr. FOUNTAIN. Mr. Speaker, after 30 years of service to the people of the Second District of North Carolina, I am about to retire from the U.S. House of Representatives. Before leav- ing I would like to submit, for the RECORn, an item dealing with an Issue with which I and many others have long been interested; namely, the al- leged effect of smoking on the health of the nonsmoker. Mr. Speaker, let me briefly place the Issue into its proper context. In 1978, the Subcommittee on Tobacco of the House Committee on Agriculture heard testimony from a vast array of eminent scientists and physicians on the Issue of the effect of tobacco smoke on nonsmokers. Those Individ- uals w ho testified generally agreed that no conclusive scientific evidence exists to support the claim that smok- ing affects the health of nonsmokers. In 1980. however, an article appeared In the New England Journal of Medi- cine by Drs. White and Feoeb entitled "Small Airways Dysfunction In Non- smokers Chroncially Exposed to To- bacco Smoke," In which the authors concluded that smoking In the work- place adversely affects the lung func- tion of nonsmokers. This conclusion appeared to conflict with the testilr.o- ny presented to the Subcommittee on Tobacco. Since !ts publication, the W-hite- Froeb study has been used to support both regulatory and legislative activi- ties in the United States. For example, the study was referred to in testimony before the Civil Aeronautics Board during Its recent consideration of rules regarding smoking aboard commercial aircraft. The National Research Coun- cil report entitled "Indoor Pollutants" which was issued in 1931 under an EPA contract also relies on the study. Finally, the White-Froeb study has re- ceived widespread attention In both State and local legislative and policy- making bodies. The White-Froeb study continues to play an important role In legislative considerations, despite the fact that gy." It is obvious that Dr. Gostomzyk the study Itself has been heaviIy criti- Is referring to Dr. White's outspoken cized by scientists and health practi- luitismoking activif ics In California, in- tioners. Most recently, at the 1982 cluding Dr. White's endorsement of Joint meeting of the American Lung public smoking referendums which Assaciation-Americ.lll Thoracic Soct- were, inciiientally, twice rejected by ety, Dr. Michael D. Lebowitz, prbfes- the California voters. sor of internal medicine, colIege of Given these and other criticisms of medicine, University of Arizona and the White-Froeb study, it would special consultant to the Subcommit- appear that the New England Journal tee on Tobacco, presented reasons of Medicine has, perhaps tuiwit'tingly, why, in his own words, "the results of performed a disservice to its reader- this study cannot be used to demon- ship. It is extremely unfortunate that strate an effect of passive smoking on a study so fraught with mt:thodolog- forced expiratory flows In adults ex- ical problems, as Indicat:ed through posed in the workplace." Dr. Lebowitz, ntlmerous criticisms by scientists In a noted specialist In epidemiology and the United Stntcs and clsewhere, respiratory diseases, said that the should have been published In such a basic problem with the White-Froeb reputable journal of ineiiicine. The study is that it is "improperly de- White-Froeb study should, therefore, signed" and that "there are problems not be relied upon by the Congress, ith w the whole data set and with the conclusion." Dr. Lcbowitz also ex- pressed concern that the significance of the W`hite-Froeb data appeared to depend upon their unexplained omis- sion of data from 3,000 subjects origi- nally included In the study. Mr. Speaker. Dr. Lebowitz wrote a letter, dated July 10, 1981, to our col- league, Congressman CItARtEs RosE,. Chairman of the Tobacco and Peanuts Subcommittee of the Iiouse Agricul- ture Committee, as a resttlt of a per- sonal interview which Chairman ROSE and Dr. Lebowitz had with Dr. White. With the personal consent of Chair- man RosE, I am Inserting herewith Dr. Lebowitz's letter. It more fully ex- plains the author's views regarding the White-Froeb study. I also want to mention another eval- uation of the Whitc-Froeb study, one Federal agencies, or other legislative or policymaking bodies when consider- ing restrictions on smoking In public places. THE UNIVERsITY OF ARIZONA. CoLLr.aE OF bSrntrtNi, Tucson. driz., Julv70. 1981 Congressman CIIAm.rs Ros>; Chairman, Suboomiuiffee on Tobacco and Peanuts, House' aC Scprescn(afires, Ray- burn Buildiny. A'aahinqlon, D.G DE.IkR CosaRESSntAN ltocE: The follow•(ng ts n summary of my nutrs on our visit to Dr. James White at UC San Diefo, as per our discussion. Unfortunatrly; despite the state- ment in the editorial of the Ncn• F.nsland Journal of h'Srdicinc ('37 March 1960), Dr. White and his co-author did not "f:lultlecily demonstrate a rctfurtion In mmsures of small airways of liralthy non smiikers cx• posed to cigarette smoF,e in the work place". It Is apparent from our vislt nn:t the article that there were various faults In the present study, which shall be dhcttcaed, which was made by Dr. J. G. Gostom- The prublems with the research desiFn zyk, director of the department: of nre as follows: health of the city of Augsburg, West The participants tw•rc not only volnntecrt Germany. After an extrnsive, detailed but generally had to p:1,v for thr php-sic:d re+ iew of the White-Froeb study, Dr. ct fitness course; this is the rca..on most acre (,,,•, uhite-collar. Etnployrr• in sprrifir factories Gostomzyk has concluded that the ~ Invited White to run ehe phg•. Ic:.1 fitncd White-Froeb data were incompletely course in their faic.t.lrdes as wrlt, which presented and did not satisfy the pre-,n, would also bias the hohul.ition s:unlple. BIuN requisites for scientific credibility. In,,, collar workers were not di>tributcd r1ndom- addition. Dr. Gostot+u:yk remarked 1y. (It has to be nm-umc•d that %oluntcers In ihc physical filncs raursrs fall inlo unrcp- that "Dr. White's methodology is not"64 scientific but that of a lay person n~ithN resentative cate6urirs: thr highly mulirated, convictions," and concluded that "we %vith an interest in hrait~h :11,d usuall)- assume that Dr. White's study is an at 1'cnlthier, those %%hu arc irrorricd about hvnith and gencrn9ly hrtlt lhy:' the first tempt at scientific v:tiidatYon of his t;roup would includi• fv%%rr smol,crs and the credo and that he possibly is unaware second group would In,aude moic zonokcrs.I of the inadequacy of this met'11©dol0- The questionn,tirr ulili: rdw:ts not a cali-
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~ ~ C dated one per se' tcst rrlest comparisons were madc orily on the smoking questions and very small groups of ,ubjccts. The smoking information was not validated. Thcrc were no tcst rcteA or validations on symptoms asked In the quc,cior,n;Jre. The questionnaire itself was derived by tlle In- vcstigator, nnd Included so:ne questions from standard qtrestlonnaires; this did not appear to Include standard respiratory ques- tions, and In fact various typical respiratory questions (such as phlegrn) were not asked. The quest{onnaire did nur incl;tde questions on nttitude, but did include qvestioi:s on ac- tivity levcls and jobs (duration, type). The questionnaire did ask ha.v many smokers were in their work area- room size, and nature of the a1r conditioning. It alzo In- eluded questions about residences in t:,e last 20 years (zip codcs), so that exposures away frorn work were assessed by residential loca- tion. A qucstion was asked about smokers In the home. [Thus, the smoking inform6tion is not validated. but'is probably rclatlvely accurate. The information about exposure to passive smoking Is only approximate, as Is the information on other occupational expo- sures. Exposures to air pollutants or to un- known toxic gases In the working place is only approximate, and'their effects underes- timated.] Dr. White presented a paper to the Ameri- can Collcge of Sports Medicine„the abstract for which in 1977 indicated there were 7:122 subjects enrolled between 1969 and 1977. However, In the New England Journal of Medicine article, he states that the base population analyzed is only 5,210 smokers and non-smokers enrolled between 1969 and 1979. Although he excluded all the ex-smok- ers, some whose zip codes were missing, his answers as to why the rest of the subjects were excluded were entirely unclear and tend to indicate potential bias In selection of subjects for consideration for analyses. It might be added that the 2,100 subjects ana- li'zed in the NEJM article and those ana- lyzed and presented In the Sports Medicine abstract appear to be the same as they yield exactly the same table of results (as deter- mined from comparison of the table in the Sports Medicine manuscript and the NEJM table). In addition to the sources of bias men- tioned above, It is apparent that the non- smokers In clean work environments and those In smoking work environments have not only chosen not to smoke, but it Is likely that those non-smokers working In smoking environments may be different for a variety of reasons from non-smokers working in clean environments. Furthermore, It Is ap- parent that the non-smokers In non-smok- ing environments are quite different in that their lung function Is "super normal" in comparison even with the Seventh Day Ad- vcntists (the source of the Morris prediction equations). Dr. White did state that from the ques- ttonnaire and from the baseline tests that there were no significant differences in the three non-smoking/non-Inhaling groups In terms of the amount of previous exercise or oxygen consumpt)on, but he was unsure of the difference In percent of body fat. Smok- ers did have less body fat, were less [n terms of having lower oxygen consumption„ and had less activity. He says further that there were no differences between the groups In terrns of childhood respiratory history (lower respiratory tract Iliytt:cses) from his submitted (Inrslionnare li:formation, but he did not .sk atinut fautlly hititory. Iie did not a:.k sufficlcutly abuut rrspiratory qucs- tlonnmirrs to npprohriairl)' exrlude groups on the bir.rs of proi3uctlce ct)ugh ("cout;h bronchitis"). lIe statcs th:tt there were no differences In prevalencc rntcs of qucstion- naire responxes by /Ip cndrs; If so, this con- tradicts other evJdrnce vis-n•vis the effects of air pollution In thrsr :rreas. He was not :=hle to asser;s other eapo%ures such as those fn:nm hobbies. cxposur:s to ga.s stoves, or tranrportatdi;n. In tenns of passive smoking In the home, he excluded such passive smokers from the non-smaking and passive smoking groups, but not from any smoking groups. He was not able to provide any In- formation ubout the dist ribuUiun of charac- teristics in those climin:urd from the origi- nal 7.000 or the 2,208 that qualified because of other qucstionnairc results. With regards to the puluionary function testing done by Dr. Wttitr, It must be first noted thaC the Instrtunrul used is not con- sidered a satisfactory insu-utuent in that it is non-lincar (highly biased) at both high volumes and low volumrs (This has the effect of maximizing differences in that anyone with r.ilnor aberrations of total vital capacity or of flows at the end of the flow volume curve would have very different, that is, low, flo.vs.) The comparisons that Dr. White did and reported on in his re- sponse letter In the NGJM (14 August 1980) would not In any way tnodify this opinion. Furthermore, Dr. White has the only pul- monary function technician and reader. Evem though he was trained at the VA hos- pital and his techniques were evaluated by test-retest and by comparison to other readers, any biases inhcrcnt in Dr. White's thinking (see below) would affect the way he read the tests. Furthermore, he took the FEV, and flows off the same spirogram using an approximation technique pub- lished by Morris, et al., which is not an ade- quate or accurate representation of those measures. All of his tests were bascline tests done after two and a half hours in the class- room in the evening on tho.,c without acute respiratory illnesses (usually on a Monday or Tuesday evening);,thns; there 1s probably little diurnal variation or pretest biases other than those experienced by the work- ers during their work day and In their activ- fties prior to the classroom. Although it Is difficult to judse the cfdrets of these fac- tors, they may have influenced the test re- sults, especially in those with any siozrifl- cant exposures during the day. The major problem with the pulmonary function test results a.a reported Is that they are not age- and heiLht-akijitstcd. since lung volumes and flow rates are associated with both of these factors. In other words, Dr. White used raw valucs of flows and volumes to do comparisons. He did this on the as- sumption that the mcan nl;e and height were similar for the different groups. This is a mistnke. since the distributtons for those ages and hoights could hacc differed.,,Fur- thermore, his quoted fil:urrs for percent predicted are strictly for the average person, age 49, with an acrrabe hcight', and does not represent the Froup for which they are provided. In terms of these stntistical analysis. he just chose the SNK package anrung many. There tx no cnrrclatiun Cx cic•nt per se. "Nunru,tlty" u;u not nn 0oJi'c• tire of this study, r.u Irr ranlivt rLrlc mny• thing about the nuiutality of lhe :ul1)cclt .iutilcd, including thor.r lte con:l-5•r,•+I trf have stgnificantly diffi•rrnt results frum Ihe non-exposed nonsnxukets. Ile dur:: tu•t un- drrstand the differrnrr bclu•rt•n cllnlrrtl meaningfulness aatd .Lr1L.tlcal sfl;nifl.ancc. It Is quite obvious lhnL the maJmity of those In the passive smu6lirt; and fn thr nnn- Inhaling group are tluiti• nonnal anQ that vrry few would be cun:•.liTrrd abnniinal by any critcria. Iai r's reported resull., he quotvs :u; tnror- rcct significance level of p.<•005, whrrc:a the level provided by the terhnGlue Is p.<.05. This ls very tliffcrrnt; Lisen the number of comparlsons tn:ulq and in+lir:ttrs that some of the rrmilis would not he atg- uifloant if corrrellons tt'rre made for Ihe nniuber of compnrlsu:ts. 1•`urtlhcrnwia•. Ihe daUz presented !n '1'nble lwns u:rd to rc- compute the SNK anal~•sls by Itlary C. Tot.nsend, MPIi (Drpvl:llent of EitGlvutlu- lol;y. Unixersity of 1'111:.burt:h): 'I'hu:.o re- sults differ from those published 6y Dr. White and are providyd In the att'acliiucnt- The most important of Itic diffeneurr:s Is tite finding that the 1):Lssire snmkrrs and li,^.ht smokers differ for llir utale 1•'I:V 75 85 pereent.: Thus, the effect of p:usive stm+khtg on non-smokers is still uncunfirnncd, dr:•t4te Dr. White's unfalling conviction that it is confirmed. Other minor points; In terms of the carbon monoxide snmpting, althuui;h IL Is stated that It was rnndon+i..ed. It w:u rcally on only 40 smoking and 40 non-smokhtk; <it- uations chosen by ch:uuce but not by random selection. Dr. I'rorb, the co aulhur with Dr. White, is a lrriralc pract4tiunrr In La Jolla and helped Dr. \Vhit.e In dr:tfthiG the NEJM manu.crliil fn+m the nuutuscript presented at the Amrrli+:ul: College uf Sport Medicine. It might be pohtted'out that Snn Diego Is not strictly low ln air polluthtn con- centrations, nor tmlformrd throuwhuut 11te area; this may bias sone rc.ults. Dr.\Vhite performed the pulmnunry function tt-sts until "reproducible curvrs were ublatnrd", but they do not nccrc,:tz tln• follow the lntrr- mountain. Snowbird, or ATS recoutmrnda- tions. In reviewing Dr. \\'.hitr's response to the letter to the Editor 1n lhtr NF.JM (14 Augu:t 1900), It Is quite clear that Dr. \Vhite did not satisfactorily ansttrr nll the qur%tGons raised, many of whlrh are sim(lar to thk%.e raised In this lettcr. It iw qucstlonatilc, trorn the discussion, whether Dr. \Vhitc tcould pursue any fatrther'rr analysis of the datti nor necessarily could It be pursurd. It Is questionable, pivcn the balQe untlrrl~tne preblcros In the rrsrarch desirn, that rr• s;inlysis of the dala tt.+uld be worthuhlke. On the other hnnd. i:1h•cn other rr:.uils th.t cotttradfct Dr. \\'httr'e, tnclu.ting thu:.r nota tn press (such ns C'omniack et al., .t,.tuis Hopklns, presented nt tltr Sorirty for mlologieal Resenrch ttt Junc of 19a1). It tt ould be likely lliat a panel discu.aon of passive smoking mii:ht l+r vahiable. I,.111 t+e t;lad to furnish furtlicr %llscuvion or lu•lit In that matter. Sincerely; 1'llCn.\M:L D.Lt.u0tvtrz, I'h. 11„ F:C.C.1'., ProJescor cql7rtferna7 A:e.Itcfrte. Q ~.: ~. , W
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C APPENDIX M
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ST:.T E,"iE NT OF G EORVE... SCHAF Er, M.D. C I zm Dr. George E. Schafer, a medical consultant to The Tobacco Institute. I am a graduate of the University of Cincinnati College of Medicine and am board certified by the American Board of Preventive"Medicine in Aerospace Medicine. ~ 1' have served-thiry-one years in the United States Air Force. My Air Force career culminated' in my assignment as Surgeon General of the United States Air Force, 1975-78; and I retired in 1978 with the grade of Lieutenant General. My Air Force career included ten years in research and develop- ment. During this time, I served as Commander of the U.S. Air Force School of Aerospace Medicine and as commander of the Aerosoace Medical Division. I have also be.en President of the Association of Military Surgeons of the United States, President of the Aerospace Medical Association, President of the Society of U.S.A.F. Flight Surgeons. I have contributed to the professional literature in the field of aerospace medicine. My responsibilities as a medical consultant to The Tobacco Institute include ongoing reviews and analyses of the medical and scientific literature in the field of smoking and h ealth. I also attend scientific meetings on smoking and health researeh. ~ ~ LM V; I am appearing before this committee today to discuss w+ ~.1r the subject of nonsmokers' exposure to tobacco smoke. I am CO
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particularly concerned that alleged health effects form the basis for ordinances. Based on my review of the scientific and medical literature, it is my opinion that tobacco smoke in public places`i~ `not an `~stab~ished-risk-to--the--- c-11h'emalth=- of-the•"-nonsmo ereK My opinion finds strong*support in the views of other physicians and scientists who have addressed this issue publicly. It may be helpful to this committee in,its deliberations on the proposed legislation for me to review briefly the public testimony of some of these respected scientists. After my summary I would like to comment on the scientific literature. Dr. Hiram T. Langston, a thoracic surgeon and clinical Professor of Surgery -at the Northwestern University Medical School,-has stated, "An assertion that tobaco smoke is a health, hazard to the normal nonsmoker is untenable. The weight of evidence as it exists in the world literature does not support a claim of adverse health effects for those exposed to 'passive smoking.' The regulation of public smoking, under the guise of a mandate to protect the public health, is without scientific justification." Dr. Langston also has addiressed the claim that tobacco smoke is a substan- tial hazard for those persons ~ with pre-existing severe cardio- ' O
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vascular tion, in question diseases and respiratory problems. Dr. Lanbston's observa- mind, deserves particular attention. "The protecting individuals with heart and~ lung a difficult one. Sympathy for their problems however, obscure our recognition~of the scientific based on current knowlege, of restricting my of is should not, invalidity, tobacco smoke in public places as a means of protecting them. In fact, these people may have a far greater need for protection from certain adverse weather conditions, general air pollution, excitement, exertion, etc." Dr. Duncan Hutcheon, Professor of Pharmacology and Medicine at the New Jersey College of Medicine and Dentistry in: Newark, testified, "Thus, I do not believe that there.is adequate scientific research to conclude that nonsmokers suffer advese health effects as a result of exposure to tobacco smoke in public places." Another physician, Dr. Edwin R. Fisher, Professor of Pathology at the University of Pittsburg, told a Congressional Subcommittee, "In summary, insofar as I am concerned, there is a lack of scientific information incriminating atmospheric tobacco smoke as a hazard. This lack of information prompts me to conclude that the proposals to-place restrictions upon the use of tobacco in public places are at this time unjusti- fied:." I might add that Dr. Fisher is the author of over and has received recognition for 450 scientific publications
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his research findings. \ In the area of cardiovascular disease, cardiologist Dr. Suzanne B. Knoebel, Professor of Medicine at the Indiana University School of Medicine, noted, "In conclusion, there are no indications that, tobacco smoke in the atmosphere either causes or accelerates cardiovascular disease in the healthy nonsmoker. Nor do available studies establish that atmospheric tobacco smoke under realistic conditions adversely affects nonsmokers with preexistent cardiovascular disease." A specialist in allergy and immunology, Dr. John 'Salvaggio of Tulane University observed:, "Contrary to claims about tobacco smoke allergy, in my judgment, it has not been clearly established~ that allergens for man are present in tobacco smoke." Dr. Kenneth Moser, Professor of Medicine and: Director of the Pulmonary Division of Urriversi:ty Hospital, University of California at San Diego, whose field of specialty is lung disease, recently said, "In my opinion, there is not now a sufficient body of hard~facts to support the view that public smoking poses a health hazard to the lungs of the nonsmoker. I believe strongly that what we need now is more research about the basic issues I have reviewed, not d legislation based on the false premise that the answers W ~ already are available. To do so would~, imfact, indirectly ~ ~.+ . 41 • ~
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stifle legitimate inquiry into these important health issues." Even the 1979 report of the Surgeon General contains the following language: "Healthy nonsmokers exposed' to cigarette smoke have little or no physiologic response to smoke and what response does occur may be due to psychological factors." The views of these eminent scientists and the quoted language from the Surgeon General's Report of 1979 provide persuasive corroboration for my own conclusion, based on my review of the existing scientific evidence that tobacco smoke-in public places has not been~proven to cause i adverse health effects in nonsmokers. Let me now turn to an article published in' the New England Journal of Medicine in March, 198'0, authored by Drs. White and Froeb. The authors reported on the pulmonary functions of office workers in the San Diego area selected from participants in a "physical fitness profile" course. They attempted to group their participants according to their exposure to tobacco smoke, as determined by each subject's responses to a self-administered questionaire. The authors then averaged the results of a spirometric test of lung function for each group. They compared the test ~ C CJ results of nonsmokers who had worked for more than 20 years'VI ~
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where no smoking was allowed with measurements of nonsmokers who had worked the saWe length of time in offices where , smoking was permitted. Based on very small differences between the average scores of the two groups, White and Froeb reported that "chronic exposure to tobacco smoke in the work environment is deleterious to the nonsmoker and significantly reduces small-airways functions." Despite the widespread.media attention the paper has received, it does not provide relevant and persuasive evidence. Scientists have been crtitical of the procedures, techniques and conclusions reached by the authors. In an editorial accompanying the White-Froeb article, l Dr. Claude Lenfant of the National Institutes of Health - asked whether this new evidence is "sufficient to initiate new legislative action that would further restrict smoking in public places." He responded to his own question with the observation that this is a "difficult and delicate question" and concluded that the White-Froeb study "is confined to only one aspect of an issue too complex to be resolved on such a limited basis." In August of the same year, the same journal that published the White-Froeb paper published a series of letters highly critical of the techniques used and conclus- ions reached by White-Froeb. These letters submitted by well known scientists concluded that the select.on and grouping of ~ ~ CR CI1 • vTJ ~
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people were subject to bias, the test results obtained were of questionable clinical significance, the instrument used l was of poor qual-ty and no~ within the technical specifica- tions established by the American Thoracic Society andl because the study had a complicated design that involved a myriad of technical, medical and behavioral variables, its results were suspect. When I put all of this available information into perspective, it is very difficult indeed to accept the conclusion that the nonsmoking subjects who had been exposed to tobacco smoke, even over such~a long work history, have become diseased from such exposure. A slight reduction in the results of two unproven and indirect tests, results whose average still must be called, normal according to experts in the field, cannot be taken•as proof of any adverse health effects. In January, 1981, Dr. Takeshi Hirayama published a study of a, Japanese population in which he claimed that nonsmoking wives of heavy smokers had a higher risk of dying from lung cancer because of their husbands' smoking. Many highly critical letters about the study appeared shortly after its publication. One group of scientists, expressing doubts about H'irayama's findings wro~e: "Ia view of so many open questions Dr. Hirayama's conclusions do not appear very well-founded." O ~ . ~ C1~ ~
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In June, 1981, Lawrence Garfinkel of the American~ Cancer Society reported findings from a larger American study which contradicted the conclusions reached in the Japanese study. Garfinkel concluded that the nonsmoking wives of smoking husbands had very little, if any, increased risk of lung cancer. A German scientist who reviewed the literature including the Hirayama work on nonsmokers' exposure to the tobacco smoke of others concluded that passive smoking may mean an annoyance for healthy adults, but in all probability, it is not connected with damage to health. Havard's Dr. Timothy Johnson~, a nationally syndicated medical columnist, wrote, "I think some serious questions must be raised about that Japanese study." Dr. Claude Lenfant, of the National Institutes of Health,'was doubting, too. "We just don't have any evidence for the same thing in this country," he told a national medical news magazine. He noted that Hirayama's data differed strikingly from data published by.other researchers. Another article appeared in the May 1980 issue of the Journal Science; levels of particulate matter in indoor atmosphere were reported. This study received little attention in the literature following its publication. n
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C Although the authors.implied heal~h effe.cts as the result of particulate matter they c laimed was due to cigarette smoke, it must be pointed out that the authors did not study humans - they only measured levels of particulate matter with instruments and performed mathematical calculations on the results. The evidence relating exposures of the nonsmoker to tobacco smoking with adverse health effects remains "sparse, incomplete and unconvincing" in the words of Dr. Lenfant. It does indeed call for further study, but it does not justify restrictions on smoking in indoor pla:ces to protect the public health. J

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