Tobacco Documents Online

C Timothy J. Lowenberg~ Attorney Tacoma, WA TiRnes reported an incident aboard the , York and Washington. A judicious-looking, , was disturbed to find himself enveloped in m his fellow riders. Being a thoughtful ;;the gentleman asked the conductor If there . ~the smoke in the cabin. To his astonishment jPwed in first cliass and if he didn't like it he ,~ Having paid' for a first-class ticket, the .4econd-class accommodation, so he suffered' ~~ his destination.. ;yld'~ not be unusual. We all know that such °iothered by secondary smoke usually suffer in ~ true story happened to be the Honorable he United States Supreme Court. When he lained to AMTRAK officials. As ai result, irst-class car of' the train. 4 Supreme Court Justice, especially rank and iit the mercy of, employers for their very p concern of nonsmokers whose health is :srmoke has beenisteadily risincp Increasingly, j,that they have the law on their side and that est worker can have the impact of a Chief ,

• . . . . . • . I share this anecdote to 1'llustrate the subtle, yet inexorable way'in whiichthe t, ~ smoking, issue' is" undergoing metamorphosis from. a perceived social Issue„to a. serious legal issue having substantial economic consequences for the employer who fails to provide a safe, smoke-free environment for his employees. i . Reverses in Mb-Smokinq Legislatirm ' The sociaU controversy between smokers and non-smokers has been withi us for as long as we have hadl smokers. ... Restrictions on smoking reached their zenith in the United States around' the turn of' the century. In 1901, 12 states had statutes restricting,or forbidding altogether the sale or use of cigarettes. These statutory prohibitions were based almost exclusively on the public's perception of smoking as a social evil. Support for such legislation was relatively strong; because of a prevailing view that cigarette smoking was reprehensible and Immoral. By 1927, however, all of the no-smoking; laws had been repealed, primarily In reaction to the fiasco of alcohol •prohibitlon which turned the public rnoodl against any such absolute prohibitions. To that point all of the law,i in the sense of'formal legislative enactments, addressed the subject of cigarette •smoking as purely a socialissue. . , The metamorphosis began with the Issuance of the Surgeon General's Report of 1972 which warned that cigarette smoke was dangerous to nonsmokers who breathe& it involuntaruly. In the years following the 1972 Surgeon General's report all but 14 states have enacted regulations and statutes giving some protection to nonsmokers. In each instance, these statutes and regwlations have been based:1 upon :evidence that tobacco smoke creates a, danger to the health of persotns who, are present In closely confined places. , • For example, Washington Administrative Code, Chapter• 248!-152, which prohibits the. smokingi of' tobacco In certain, public places, ia based upon a decliaration, by the Washington State Board of' Health that there.is a danger to the health of persons exposedlto sidestream smoke. . _ :. Workplace Smoking There is one place, of course,; where a person is forcibly exposed to thiis danger for at least eight hours a.day, five days a week -- and that. is the workplace. The statutes in Colorado, Minnesotai Montana, Nebraska, Oregpn, and Utah all contain sections specifically dealing with smoking in the workplace. The ~' Minnesota, Momtana{ Nebraska and Utah, statutes specify enclosed indoor areas N' "serving as a place of work" as areas where smoking is prohibited. ., 01 Other regulatory schemes, such as the Washington Administrative Code, are ~ restricted to designated places open to the general public. In such, states most ~ workplaces remain largely unreguiatedl In my judgment WAC 248,152 and similar ~. ~ -2- W-2

~..,... _ ~,.,. -.. r. ~..... ~.::.:: n enactments are largely ineffectual because of' the limited scope of' application. Some, like WAC 248-152, don't even have any penalty provisions for those who violate the srnoking ban. However, the importance of the public policy declera- ti!ons in these statutes and regulations cannot be overstated. Moreover, the absence of a meaningful'generai'statute ini any given state should be of no solace to the employer who wants to avoid' taking a position on the issue of smoking in the workplace, because there is a rapidly developing, body of law which is resulting in the award of disability benefits, unemployment compensation benefits, injunctive relief and other judical remedies on discriminationi and handicapped' theories to workers who suffer the ilU!effiects of exposure toismoke in the workplace. Smokeri R'iights Make no mistake about i't: many private employers have attemptedlto remain on the sidelines andlassume the posture of a disinterested observer in the so-called fight between smoking and nonsmoking emplbyees. Many employers have justified their inaction by clairning that they are under an affirmative obligation to protect the rights of smokers as much as nonsmokers and that in considering ai smoking policy for their company they must, as a matter of law, try to strike a balance between the rights of' smokers and the rights of nonsmokers. This fence-straddling policy is a fallacious one because it rests upon a fundamentally unsound' premise; that is, that smokers have a legal right to smoke in the workplace.. I wonder if employers would' speak of' individual rialhLs if a worker were required' to sit in a smoke-filled box d{:ring rest breaks and meal, periods. If every day an employer's workers releasedi from canisters the exact chemicals they are now relieasinq from their cigarettes, I think we would all consider it ludicrous to defend thei'r "right"'to do so. The handwritingl is on the wall andi employers are no longer going to be able to remain on the sidelines because, in fact, their inaction is as decisive as intentionally striking a balance in favor of the smoker. Employers who have not ensured a smoke-free environment for their nonsmoking employees are increasingly payiinghigher premiums becauseof, workmen's compensation, disabiiity, and' un-empibyment compensation awards, as well as other, penalties in civil suits. There are no comparable economic penalties when the employer protects the acknowl- edged rights of nonsmoking employees. The reasoni I' say that smokingi employees have no protected rights in a legal or eqVitable sense is that the common law of this nation, except where restricted by labor relations agreements or civil service statutes, is that all employment is employment at willl; that is, the employee serves at the employer's pleasure. There is nothing, in our common law system which indicates that there is any more of a right to smoke in the workplace than there is ai right' to sing at the top of' one's voice or to dress however one wishes or to play one's personal radio in whatever manner one wishes or to do anything else which is not necessary to the performance of the essential elements of an assigned job.

No matter how you analyze it, it's clear that the~ use of tobacco products is not necessary to the performance of, most jobs and therefore cannot be used as a basis for asserting any right in a legal sense to use tobacco products in the course of performing a!job. To the contrary, environmental and industrial engineers have amply demonstrated that the use of tobacco products is more often than not counter-productive and' prevents, the employee from performing, at the highest level' of their potential. 11 suggested earlier that indecision is itself, a decision. As the case law is now making abundantly clear, it is al'so an expensive decisiom A smoke-filled workplace, whether it exists by design or by default, exposes the employer to substantial economic penalties for injuries caused to nonsmoking employees who are harmed' by the secondary smoke source. Employer's Duty Most courts have ruled since well before the turn, of the century that an employer has a continuing, affirmative duty to provide a safe and healthful plrice of work. For example, in Richardson v. Spokane, 67 Wash. 621, 623 ('19112), the Washington Supreme Court said: That it is the~ positive duty of' the master to exercise reasonable care to furnish a safe place of' work andithat the duty is a continuing one, has so oftenibeen stated by this andi other courts as to require no citation of authority. The divergence of the adjudicated cases is found, not in any real difference of opinion as to the nature or scope of the~rule, but in determining what in a given case is reasonable care. That is certainly a relevant question to be determined by the nature of the work, the imminence of' the danger, the consequences to be anticipated, and all the conditions, circumstances and surroundings. 67 Wash. 6'21,,623 (1912): This continuing, affirmative duty toi provide a safe and healthful work environment is not based on any concept of majority rule; rather, it, imposes a strict duty an the part ofthe employer to exercise reasonabie care to, protect the health of' each employee. There! is no de miniimous standard. Mr. Justice Cardozo, one of! this Country's~most revered legal scholars and jurists, observed in another context: It is of, no concern of ours that the controversy at the root of' this lawsuit may seem to be triviall To enforce one's rights~ when they are! violated is never a legal wrong, Even if the risk viewed alone is one which affects only one or two workers, i'tis still! signifi~cantenough: to require theexerci'seof care of the employer. The number of, people affected is not de minirnous. The U.S. Public Health Service reports that there are 1'S+j' mi'liiion people in the United States with chrorni~c W-4

lbng problems; and by one estimate, eight million persons in the United States are clinically sensitive to tobacco smoke. Some of those eight million victims may be working,for, you. The harm„ of' course, if it materializes, is not insignificant. Ilt is devastating. Out of' an estiimatedl 122,000 Americans who will be told this year that they have lungicancer, only about 10% will live another five years or lion9er. The economic consequencs for the employer who exposes his employees to this risk of' loss of life, is~ also extreme. In the absence of' a workmen's compensa tion statute, it might be the same as if the employer forced employees to work with toxic chemicals without adequate protection. The extension of the common law duty of care to nonsmoking employees is, then, a predictable application of age-old rules of' law to conditions, circumstances and surroundings off the workplace which are now viewed in light of, well-established scientific evidence of health hazards posed to nonsmokers whoi are subjected to smoke in the workplace. The Shimp Case A New Jersey judge has ruled in Shim v. New Jersey Bell Tele hone Co., 145 N.J. Super. 516, 368 A.2d 408 (App. Div. 19716)9 that the common 1aw duty of the employer to provide a safe~ work place mandates that the employer protect nonsmoking emplbyees from the hazardl of secondhand cigarette smoke. In the Shi'm , case the plaintif'f had been employed' inthe offices of the~ telephone company for many years. In the early 1970's she began suffering a variety of severe symptoms as a result of an acquired allergy to cigarette smoke. Her allergic reaction could be! triggered by the presence of as little! as one nearby smoker. In the office to which she was transferred in 1975, seven of 13 employees smoked heavi'ly~. Shimp's util'ization, of company grievance mechanisms resulted~ only in the installation of an exhaust fan whi~ch proved to be largely ineffective. She was offered the opportunity to move to ai different location, but the move would have entaided a demotion andl a decrease in pay. After seeking, rellief through several government agencies, she brought suit in equity for injunctive relief. In his landmark opinion, the judge notedi that the right to a safe working environment is a "widely recognizedicornmon law concept which has existed since the early 1800!s in every jurisdiction of' the Unitedl States to the best of my knowledge."' The only defense raised in the Shimp case and other litigatiion, under a common law theory has been the assertion that the Occupational Safety & Healt.h Act of 1970 preempts the fiel~d. However, in Shim and in every other reported ~ decisi~on, the court'has made short shrift of the preemption theory citing the provisions of 29 USC 653('bx4), which expressly recogtnilzes the concurrent state ~ power to~ act either legislatively of judicially und'er commn law: Even though the New Jersey Workmen's Compensatibn Law barred the ~ recovery of monetary damages for Ntrs: Shimp, as similar statutes would in most states, the judge nevert'heless granted equity relief' in the form of an injunction ~ Q. -5- W-5

directing the employer to create and maintain a smoke-free environment. Failure to abide by such an order could, in turn, subject the employer to fiines and7or incarceration of key company officials on contempt of court charges until compiiance is effected: Compliance with an injunction{ even where you can't be force6 to: pay money damages, can still be an expensive price to, pay fior not having a meaningful smoking poliicy.. Cornmon iLaw Cases Federal' courts have been equally protective of the right of state jurisdictions to develop: andl extend' the: commoni law employment doctrines to the issue of smokingi in the workplace. Fmr example, In Federal Em plo ees for Non-Smokers' Rights v. United' States, 466 F.Supp. 181, aff'd. 59'8 F.2d 310 (D.C. Cir.), cert. denied 100 Swp. Ct. 2i65 (1979'),, a class action: was brought' on various constitutional theoriies by nonsmoking federal employees who sought an injunction restricting smoking to designated areas of federal buildings. The court dismissed the piaintiff s causes of action under the constituti6nal theories and' under the Occupational Safety & Health Act of 1970, but expressly refused to dismiss the cause of action brought under the common 1®wv duty of, the employer to make the workplace safe. These common law cases have been followed by a number of' other precedent-setting decisions awarding disability compensation to employees who, suffer physical, ailments caused by passive smoking. For example: (1) In one case a Bank of America teller was awarded' three years of temporary disabi'lity benefits because! of such physical ailments~ attributedi to secondary smoke exposure„ (2) In another case a senior Social Security Administration employee in the Baltimore, Maryland office~ was awarded E700100 every two weeks (75% of his salary) in compensationn for physical ailments causedlby passive smoking.. (3) In California, an airline stewardess sensitive to secondhand smoke has been given a permanent disability indemnity of, $3,657.50 plus all expenses and a!ttorney'§ fees because she sustained an industriall injury caused by an allergic reaction to the in-flight eabin! air containing tobacco smoke (hiarriett Brooks v. Transvvorld'i Air Lines & Liberty Mutual Ins. Co., 76 SF 257-975). (4) In, Madison,, Wisconsin, an employee has been awarded aa total permanent disability on the basis that her sensitivity to tobacco smoke is ai handiicap, under the Federal Rehabilitation Act of 1973. -6- W-61

This line of disability compensation cases has come home to the Pacific Northwest, in a manner of speaking, in, a decision by the 9th Circuit Court of Appeals in Parodi v. Merit Systems Protection Board, 690 F.2d' 731 (9th Cir., Oct. 21, 1982). The Merit Systems Protection Board (the statutory successor to the U.S. Civil Service Commission) had denied Ms. Parodi$s disability retirement appliication, even though she admittedly suffered from, asthmatic bronchitis from exposure to secondhand smoke in the workplace. The 9th Circuit found that she could not perform her' job due to its lbcation in a smke-filledi office and squarely reversed the MSPB ruling that she must be granted'disability retirement unless~she were offered a suitable jpb in a smoke-free environment within 60 days of the court's: award. In some states employers are paying the prices for inaction even where employee& leave the workplace before suffering the illl-e#fects of secondary smoke exposure. In Iowa and Callifornia unemplbymenL benefits are now granted to nonsmoking workers who are forced to resign because of co-worker smoking andi the refusal of employers to: provide smoke-free work areas. Such cessation of employment is not considered to be aivoluntary, quit. The effect of such decisi!ons on your company's unemployment' compensation premiums is obvious. Nonsmokers As Handicapped In yet another landmark case deciidedi by Federal Judge Donaldi Vorhees in Seattle,, the court found that an employee of the Veterans Adrnainistration was a handicapped worker who was entitled to protection under the Rehabilitation Act of~ 1973' because of his physiologic propensity to serious health problems when exposed to secondary smoke sources ini the workplace. The case is Vickers v. Veterans Admini'stration, (W.D. Wash. No. C81-85V). The Act in question forbids~ any program or activity receiving federall funds in excess of, $2,500100 toi discriminate against a qualified handicapped person solely on the basis~ of` their handicap if the person can perform the essential function of the job with reasonable accommoda* tion. Any person is a handicapped' person withini the contemplatibn of 29 U.S.C 7'94! if they have a physical impairment which substantially limits one or more of their major life acti!vities. For those handicapped persons with breathing difficulties, the elimination of involuntary or secondhand smoking, may be considered a reasonable accommodation. In almost alll' circumstances, it is an accommodation which is within the employer's power to, provide. Judge Vorhees: stated' in his August 31, 1982 opinion: It appears from the evidence in this~ cause that plaintiffi is unusually sensitive toi tobacco smoke and that this hyper- sensitivity does ini fact limit at' least one of his major life Q activities, that is; his capacity to work ini an environment ~ which is not completely smoke-free. N ~ The Judge was apparently unimpressedIby the evidence presentedl in support of the ~' tolerance policy of' the federal agency, incJwdingi testimony by the plaintiff's. ~ supervisor (who was. a heavy smoker) that if accommodation had to be made for ~ ~

P Mr. Vickers, the supervisor and others~ would quit their jobs. Although Judge Vorhees did not have to comment on the enforceability of a no-smoking policy in order to dispose of the case before him, he.went on to state: Had Congress enacted legislation or the Veterans Administration, adopte& a policy or the director of the Mediical' Center promulgated' a directive forbidding the smoking of tobacco in any office space, this court would readily enforce that ban "(Vickert v. VA (Western District No. C81-8'S'V), memorandumi decision entered August 31,. 1982.) Recipient& of federal funding who do not provide reasonable accommodation for workers who are sensitive to secondary smoke exposure risk a potential!ly` staggering penalty. The Federal! RehabilitaCion, Act doesn't provide for money, damages or any other remedy commonly associatedl with: enforcement of the non- smoking employees' rights; rather, the remedy is debarment of the employer and cessation of federal funding until compliance and accommodation in a smoke-free workplace is assured. Note aiso the res 'udicata effect of a court order finding the nonsmokingi worker to be a, handicapped person within the meaningi of the Federal Rehabilitation Act. That finding will fully expose the employer to the entire panoply of' secondary remedies including disability reti!rement, workmen's com- pensation awards, injunctive relief'and in appropriate cases unemployment compen- sationi benefits. Labor Arbitration As Judge Vorhees so strongly inferred in his opinion, i f' the empioyer adopts a no-smoking policy, the employer can expect strict enforcement by the courts and by labor arbitrators. For example, in Illinois Freedom Produce Corp. and Teamsters Local' 722, 66 Labor Arb. Rep. 498 (January 2:8, 1976), a permanent Board! of Adjustment chaired by Ralph S. Novak, impartial member, ruled that the employer's no-smoking pol!icy was valid and could be enforced to~ sustain the discharge of' a delivery driver for smoking during an unauthorized break. AA companion action against a warehouseman for smoking in the loading dock area in; violation of the no-smoking rule was reversed in the same hearing,, but oni the narrow grounds that the employer was, required to give prior written notice to the discharged or suspended employee and the warehouseman's discharge had been a summary termination. That 'ts~ not to say that there are not some speciiously-reasoned labor ~ arbitration, decisions which have set aside the no-smoking policiies of employers. ~ For example, in~ Schien Body & Equipment C'o+, Inc. and United Steel Workers of N America, Local 8557' (Nov. 16, 1977), Arbitrator Raymond R. Roberts struck down ~ the employer'§ no-smoking rule stating; r~ ~ ~ ~ -8- W=8

r, To support a rule whose relationship to the company business needs is remote, speculative, and conjecturaf, is fraught with substantial danger to the personal freedoms of~ employees. For example, there are studies which show an increasing relationship between the use of coffee and other beverages containing caffeine and heart disease. Should a, company, based upon the possible relationship to the health, of its employees, be permitted to ban the use of coffee, Coca Cola and tea on its premises during break and lunch periods? By the same token, there is increasingl evidence that certain food additives may constitute a health hazard over a sufficiently large statisticall sampling. Should' a company thereby, because of its interest in employees' health, be permitted to control what employees will carry in their lunch boxes and' consume during lunch periods on company time?' The arbitrator is inclined to think not. The relationship betweeni those activities and the employee's health, as an individual, is, at best, remote and indirect. The corresponding restriction upon the employee's personal freedom can hardly be justified by the company's legitimate business interests.. Note that the arbitrator does not examine the relationship between the prohibited' activities and'the health of' fellow employees for which the employer might be held accountable for money damages or statutory benefits in the event the fellow employees suffer health injuries from exposure to a smoke-filled environment. The other fascinating aspect of this case is that a great deal of evidence regarding the medical risks was introducediand the arbitrator readily found as fact, and concluded as a matter of law that smoking constituted a serious health hazard to the smoking employee and to those who were exposed to the secondary source~of smoke. The arbitrator statedt Turning tol the health consideration, the arbitrator accepts .the evidence that there is a relationship between smoking and health, as previbusly noted, and that this relationship is so! well knowni that he would'have taken: judicial notice of it absent the company's evidence. Such a relationship is not,: however, immediate but is, at best, cumulative over an, extended' peri'odl From that promisinq introduction the arbitrator then concluded that the onlylegit'imate business justification for the no-smoking rule would be if the employer couldi demonstrate that the rule wouldi so. directly and proximately benefiL the smoker's health so as to reduce absenteeism and, thus indirectly, increase. t'he longevity ofi good~employees. This troublesome decision appears to be an aberration. However, it also, indirectly raises a serious labor law problem which~ 1'want to caution you about. That is,, where a labor organization has recognition rights under the National Labor Relations Act,, the smoking policy of' the company is, in my judgment, a, mandatory

subject of bargaining and the employer would commit an unfair labor practice if' it were to i'rmplement a smoking~ policy without first' negoti'ratingi the subject with the Union. That a no-smoking policy is indeed a mandatory subject of bargaining, can hardly be qwestioned when one realizes that the temperature in the workplace,, the dress habits of workers, parking privileges, physical examinations, the use of personal radios, whether, employees will' be permitted time to wash up at the end of a shift, and even the issue of free coffee are all mandatory subjects whichi must first be negotiated before implementingi a company policy. Iwloreover,, a violation of the Sec.tion 8(a)(5) duty to bargain, in good faiith is not dependent upon a subjective intention of the!ernployer to avoid the bargainingiobligation; rather, it is a per se test. If the National Labor Relations Board~ finds that the challenged company policy is a mandatory subject for bargaining, the failure to negotiate in good faith to the point of' impasse will' be an unfair labor practice as ai matter of law. Having said that the smokJng policy of al company is ai mandatory subject for bargaining, however, I must also hasten to, add that ei'ther party is free to insist upon adopti'oni of, its proposal on the subject to the point of impasse; and after a bona fide impasse the employer is free, to unilaterally establish the policy it desires soi liong as it is consistent with its pre-impasse~ proposals: Taft Broadcasting Co.,, 163' MLRB 47'5 (1967),, enf.d. 395 F.2M1622' (D.C. Ci!r. 1968). In dealing with organized labor,, it seems to me that the employer definitely has the upper hand because organized labor is caught squarely in the midtlles It represents both smokers andl nonsmokers. For that reason the union is likely to be amenable to almost any, company policy which permits of a compromise, such as ai reserved' smokers' lounge to be usedl by smoking employees during non-working, time. The union can then claim to, bot'h its smoking and nonsmoking members thatt it has fairly and equitably protec ted their respective interests. Because of' the obvious split among the labor organization's own constituency, it is also: highly unlikely that a smoking policy would be a strike issue in the event the emplbyer elects toi unila!terally implement its policy following an impasse in the labor negotiations. The, emplnyer, can also offer some fairly convincing evidence to the union as to the breadth of support which naturally exists, for no-smoking policies. In a 1975 survey conducted by the Department of, Health, Education, & Welfare, 71896 of all adults, including fully 70% of all adult smokers, felt that employers had the right to prohibit smoking in the workplace. Clearly, this a social phenomenom which can be turned to, the advantage of the employer in adopting ai smart, cost-conscious no- smoking policy for its. workplace. It might also be possible for the employer to iimplement the policy without even negotiating with the union if there is a strong management rights' cl'ause in the contract and'f if the labor agreement does. not incorporate past practices. -10- W-10.