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STATE OF MINNESOTA OFFICE OF THE AT7URNEY GENERAL HUBERT H. HLWPHREY Ili AM)r.EA• GKNUAL March 22, 1993 Representative Phyllis Kahn Minnesota House of Representatives 369 State Office Building 100 Constitution Avenue St. Paul, NV 55155 Dear Representative Kahn: In your recent letter to Attorney General Humphrey, you advised us that the United States Environmental Protection Agency had declared second-hand tobacco smoke to be a class A carcinogen. Based thereon, you have asked for our opinion regarding the legal liabilities an employer might face for failure to protect workers from second-hand smoke. Specifically, you asked (1) whether employers are now potentially liable for damages if an employee suffers health consequences att=ibutable to second-hand smoke, and (2) whether there are steps an employer could take to protect against future lawsuits from injured workers. In response, it is our opinion that employers do face a potential liability by allowing their employees to be exposed to second-hand smoke in the workplace and, yes, there are steps an employer might take to reduce this potential. The EPA's recent findings, and its declaration that second-hand tobacco smoke is a class A carcinogen does not, per se, place a new lfability on employers which did nQt exist before. It could, however, provide additional justification for stricter regulation of smoke in the workplace under federal and state Occupational Heahh and Safety Laws and Minnesota's Clean Indoor Air Act. As you no doubt are aware, neither the federal or state "OSHA" laws nor the state Clean Indoor Air Act currently provide standards or "tolerance levels" for second-hand smoke in the workplace, nor do they impose liability on an employer for injuries based upon exposure to second-hand smoke. Although we are not aware of any activity at the federal level to provide additional OSHA regulation of second-hand smoke, there apparently are several current proposals to amend the state Clean Indoor Air Act and we assume that second-hand smoke's classificadon as a carcinogen has played a role in promoting this activity. With respect to an employer's direct liability to an employee, second-hand smoke's classification as a carcinogen tnight assist employees in the future in ptoviag a ac usal relationship between smoke in the workplace and resulting Equal OppoAunity Employer ISSUE 44 APPENDIX C ..~._

Representative Phyllis Kahn Page 2 March 22, 1993 disability. In Minnesota, with several complicated exceptions, workers' compensation benefits provide thc exclusive remedy against an employer for injuries which result during the course and scope of employment (work-related). See, Minn. Stat. §§ 176.001, 176.061 (1992). Thus, whether an employer's liability increases due to the allowance of second-hand smoke in the work-place depends upon whether disability resulting therefrom is compensable under the state's workers' compensation law. "Occupational disease," which we assume is the nature of injury which would be claimed due to second-hand smoke, is considered a personal injury under the state's workers' compensation law and if proven to be causally related to work, is subject to the payment of compensation and medical benefits. Minn. Stat. § 176.011, subd. 16 (1992). The statutory definition of "occupational disease" is quite lengthy and provides strict tests which must be met to prove a causal relationship between work and disease. The definition generally includes diseases "arising out of and in the course of employment peculiar to the occupation in whicb the employee is engaged and due to causes in excess of the hazards ordinary of employment." Minn. Stat. § 176.011, subd. 15 (1992). Excluded, however, are "ordinary diseases of life which the general public is equally exposod to outside of employment" unless, "the exposure peculiar to the occupation makes the disease an occupational disease hazard." 1d. The definition goes on to declare that the disease must be traced to the employment as a direct and proximate cause and must be recognized as a hazard "characteristic of and peculiar to the trade or employment and results from a hazatd which the worker was not equally exposed to outside of work." Id. Extensive litigation has occurred in the past over the definitional criteria, in particular, in cases involving exposure to asbestos and silica dust and resulting asbestosis and silicosis and in coronary heart disease cases. We are unaware of any cases in Minnesota which have extended the theories of these cases and awarded benefits due to diseases caused by exposure to second-hand smoke. The potential for such cases in the future, however, certainly exists, and the recognition of second-hand smoke as a carcinogen will enhance an employee's ability to prove a causal relationship between exposure to second-hand smoke at the workplace and resulting disease.l 1 Increased liability may already exist for employers of firefighters. Under Minn. Stat. 1 176.011, subd.15(e), a firefighter who contracts a disabling cancer of a type caused by exposure to a suspected carcinogen, as defined by the International Agency for Research on Cancer is presumed to have an occupational disease if the carcinogen is reasonably linked to the cancer.

Representative Phyllis Kahn Page 3 March 22, 1993 With respect to your second question, the simple answer is, yes, there are steps an employer can take to minimize future potential liability, which steps could include banning or restricting all smoking at the workplace. Neither federal nor state law would appear to prevent an employer from banning smoking in the workplace or from taking other reasonable steps to assure that other employees are not exposed to second-hand smoke. Sincerely, JOHN R. 'IVNHEIM Chief Deputy Attorney General