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Vol. 7, No. 42 ./ i"-'-;. BNA's EMPLOYEE RELATIONS WEEKLY WORKPLACE SMOKING: CORPORATE PRACTICES & D EVELOPIVIENTS AOUTETO October 23, 1989 File Special Supplement behind issue dated October 23, 1989

Copyright © 1989 The Bureau of National Affairs, Inc. Additional copies of this Special Supplement "Workplace Smoking: Corporate Policies & Developments," are $25 each and may be obtained from BNA PLUS, 1231 25th St., N.W., Washington, D.C. 20037; (800) 452- 7773; (202) 452-4323 in Washington, D.C., with quantity discounts available. Portions of this Special Supple- ment will appear in a BNA Special Report scheduled for publication in 1990, Where There's Smoke: Problems and Policies Concerning Smoking in the Workplace, 3rd Edition.

y TABLE OF CONTENTS I Introduction .................................................. 11 Surveys ...................................................... III Legal Developments ............................................ IV Legislative/Regulatory ......................................... V State Laws ................................................... State Laws Charts ........................................... VI Union Viewpoint .............................................. VII Case Studies .................................................. Bonne Be11Inc . ............................................. City Federal Savings and Loan Association ...................... Cybertak Computer Products Inc . .............................. Enron Corp . ................................................ Ford Motor Co . ............................................. Fortunoff Fine Jewelry and Silverware Inc ........................ General American Life Insurance Co ............................ Group Health Cooperative of Puget Sound/GTE .................. IBM Corp . ................................................. Litho Industries Inc . ......................................... Los Angeles Times ........................................... Metropolitan Life Insurance Co . ............................... National Education Association ................................ Northwestern National Life Insurance Company .................. Pioneer Hi-Bred International .................................. R.J. Reynolds Tobacco Co ..................................... Speedcall Corp . ............................................. VIII Appendices ................................................... AFL-CIO Statement on Smoking Policies ........................ EPA Fact Sheet: Indoor Air Facts, Environmental Tobacco Smoke ... New Jersey Group Against Smoking Inc. (GASP) Model Policy ..... Model Smoking Policy for Business and Industry, Center for Corporate Public Involvement ....................................... Page 5 7 9 14 15 16 19 21 21 21 21 36 ~ 37 O

(Vol. 7) 5 INTRODUCTION Workplace Smoking SMOKING POLICIES CONTINUE TO GROW IN NUMBER, VARIETY, SOPHISTICATION Companies across the nation continue to respond to the issue of workplace smoking in various ways, rang- ing from relying on courtesy between workers to resolve the dilemma to the refusal by some employers to hire anyone who has smoked within the past year. An increasing number of employers are instituting smoking policies, surveys note, against the backdrop of mounting evidence from the U.S. Surgeon General's office and other federal agencies that "sidestream" or passive smoking, which refers to the involuntary inha- lation of a smoker's tobacco exhalation, is associated with an increased risk of lung cancer. The 1986 U.S. Surgeon General's report on environ- mental tobacco smoke (ETS) specifically linked pas- sive smoking with an increased risk of cancer. And this past June, the Environmental Protection Agency injected itself into the workplace smoking issue with the issuance of a Fact Sheet (See Appendices section of this supplement). Because ETS is a known cause of lung cancer and respiratory symptoms, EPA reasoned, employers should restrict workplace smoking to separate, venti- lated areas, or eliminate smoking entirely, 7 ER W 1031 (Aug. 14, 1989). In response to these reports, employers are faced with balancing the health and morale concerns of non- smokers with the personal preference and privacy concerns raised by employees who smoke. Balancing Smokers' Rights According to the Tobacco Institute, workers who smoke have certain smoking rights in the workplace. Only one state court has ordered that smoking be banned in a workplace, and the legal theory behind that ruling has not been successfully argued since, the Institute points out. In Smokers' Rights In the Workplace: An Em- ployee Guide, which is distributed by the Tobacco Institute, smokers are advised that they should "firm- ly, but politely" assert their rights to their personal lifestyle and preferences. Smokers' rights, according to the Institute, include: • Being consulted before a policy is adopted; • To be reasonably accommodated by the policy; • To have the smoker's preference considered on an equal basis with non-smokers; • To take any dispute to a union, where applicable; • To be free of harassment, verbal or otherwise; and • To be told the legal basis for the policy. While the debate over the relative dangers of smok- ing and of inhaling second-hand smoke is sure to continue, employers agree that the subject of work- place smoking creates at least one other harmful byproduct: dissension in the ranks. One goal of corpo- rate smoking policies is to defuse this dissension. Employers aiming to eliminate the number of smokers in the workplace use many incentives, such as desk sets, clocks, lump-sum cash awards and even weekly cash bonuses to lure workers away from to- bacco. Other employers rely on smoking cessation programs, and many offer to subsidize the cost of the programs with various participatory schemes. Corporate Case Studies While many of the firms detailed in the Case Stud- ies section of this supplement have used incentives with great success, one noted smoking consultant has called them "morale busters." Rita Addison, executive director of Clean Air Associates in Boston, points out that employees who have never smoked can be resent- ful of monetary and other gifts employers use to induce smokers to quit the habit. The profiled policies in this report range from an unwritten rule of respect and courtesy for co-workers at R.J. Reynolds Co., which is the nation's second largest cigarette producer, to an outright ban on the hiring of smokers at Fortunoff Fine Jewelry and Silverware Inc., New York. Employees at the Bonne Bell cosmetics firm in Cleveland, Ohio, can gamble on their cessation success by agreeing to accept $250 from the employer to quit smoking, but also must pledge to pay Bonne Bell $500 if they ever resume the habit. Metropolitan Life Insur- ance Co. employees in New York can pick up $100 for quitting smoking, while Speedcall Corp. employees earn an extra $7 per week if they stay off the weed. Happiness with the Speedcall program is high, since it compensates all non-smokers, regardless of whether they are reformed smokers or had never smoked. Other firms emphasize smoking cessation programs for their employees. General Telephone Northwest in Everett, Wash., decided to contract with Group Health Cooperative of Puget Sound for a telephone counseling program, which the plan's supporters say has a much higher success rate than group programs. Surveys A number of surveys conducted over the past dec- ade show that in increasing numbers employers are instituting restrictive smoking policies. A survey re- leased earlier this year by the Administrative Man- agement Society found that 60 percent of responding firms had implemented smoking restrictions, up from just 16 percent in 1980. That same survey found that 73 percent of respond- ing companies reported complaints about workplace smoking from non-smoking employees. The debate over absenteeism and smoking heated up in 1989, with a new survey funded by the U.S. Chamber of Commerce refuting the previous findings 10-23-89 BNA's Employee Relations Weekly 0739-~3076/89/$0+.50

6 (Vol. 7) that smokers are more likely to be absent than non- smokers. While several federal studies have shown the absenteeism rates of non-smokers to be lower than that of smokers, the Chamber study found no such correlation. Surveys also have found that the prevalence of smoking in the United States continues to decline: smokers made up 29 percent of the population in 1987. The greatest predictor of smoking status, however, shifted in 1987 from gender to educational achieve- ment. A Centers for Disease Control survey shows that just 16.3 percent of college graduates smoke, while 35.7 percent of the U.S. population without high school diplomas were smoking in 1987 (See Surveys section.) Legal Developments Despite heated debates and conflicting surveys on the hazards of sidestream smoke in the workplace, the courts have been reluctant to intervene in the debate. Advocates on both sides have asked various courts to find in law either a right to smoke or a right to work in a smoke-free environment, but the courts have declined the invitation. The first major case on workplace smoking was decided in 1976 and involved the common law duty of an employer to provide a safe workplace. A New Jersey court found a common law right to a safe work environment and ordered the employer to restrict smoking to non-work areas. While the case was viewed as a landmark, it has not spawned successful litigation based upon the same theory. In the unionized setting, some courts have held that employers may have a duty to bargain over smoking restrictions or a change in smoking policies. Many such disputes are settled by arbitrators, who rely upon specific contract wording and the history of the poli- cies at the specific worksite in reaching their decisions. Generally, arbitrators uphold employers' rights to impose and enforce "reasonable" smoking restrictions to safeguard life and property (see Legal Develop- ments section of this supplement). L egislative/Regulatory The first federal legislation regulating smoking in private sector workplaces was poised for House and Senate floor action at press time for this Special Supplement. The legislation (HR 3015) would ban smoking on all airline flights within the continental United States lasting six hours or less-more than 90 percent of all domestic air traffic. Airline pilots and fiight attendant unions fought for the ban in their airborne workplaces on the grounds that environmental tobacco smoke constitutes a health hazard to their members. The measure, is expected to pass Congress and be signed into law, Hill aides said. Smoking in federal buildings operated by the Gener- al Services Administration has been restricted since 1987, though the actual implementation of these re- strictions have been slowed by ventilation problems, union desires for participation, building design and cost considerations. And a lawsuit that sought to compel the Occupation- al Safety and Health Administration to ban or restrict BNA's EMPLOYEE RELATIONS WEEKLY workplace smoking was dismissed last month, after the anti-smoking group that filed the suit failed to convince the agency to issue a standard (See Legisla- tive/Regulatory section in this supplement). State Laws A majority of the states regulate smoking in public places in one form or another, but just a handful have passed laws that specifically regulate workplace smoking. Some 42 states and the District of Columbia have laws controlling smoking, which were passed not as fire safety measures, but as non-smokers' rights legis- lation. The various laws cover private and public employers, or specified groups of employers, such as retailers, restauranteurs, educational institutions or cultural facilities. In other states, governors have signed executive orders or policy statements that address the issue of smoking in state-controlled buildings and offices, while many municipalities have also passed restric- tive smoking legislation (See State Laws section.) Union Concerns Labor unions continue to hold the view that the best smoking policies are ones that are negotiated. So long as employees are consulted, and accommo- dations made for those who smoke, unions generally are prepared to go along with quite restrictive poli- cies, according to union officials interviewed by BNA. The smoking issue is not as contentious as it was a few years ago, union leaders say, noting that people today are more accepting of policies that restrict smoking. Unions, however, will continue to fight the unilater- al imposition of a smoking ban, BNA was told. The Washington Federation of State Employees, an AFSCME affiliate, successfully challenged a ban im- posed by the state. Early this year the state's Person- nel Board ruled that the state had committed an unfair labor practice by implementing the ban without bargaining with the union (See Union Viewpoint). The AFL-CIO still stands behind its 1986 smoking statement (See Appendices in this supplement), which stresses concern for all workplace toxins, not just tobacco smoke, and urges voluntary policies worked out between labor and management in individ- ual workplaces that protect the rights of all. Acknowledgements This special supplement was produced by the staffs of BNA's Employee Relations Weekly and Labor Rela- tions Week, Susan J. Sala, managing editor. The following BNA staff editors and correspondents contributed to the report: Michelle Amber, AnnTher- ese Carlozzo, Mary Chapman, Michael C. Davis, Susan R. Hobbs, Elizabeth Hofmeister, Elaine Kessler, Terry Hammond-Smith, Gregory C. McCaffery, Sharon R.M. Mason, Gail C. Moorstein, Nan Netherton, and Mark Wolski. McCaffery also served as copy editor. The graphics were produced by the BNA Surveys Unit, J. Michael Reidy, managing editor, George Esco- bar, graphics project coordinator, and Robert Savidge, graphics designer. C] 10-23-89 Copyright 0 1989 by The Bureau of National Affairs, Inc., Washington, D.C. 20037 0739-3016J89/$0+.50

(Vo1. 7) 7 SURVEYS Polling Data SMOKING RESTRICTIONS RESPOND TO EMPLOYEE ANXIETIES, SURVEYS SHOW Surveys conducted throughout the 1980s are finding that the number of workplaces implementing smoking restrictions is growing. "Since the beginning of the decade, the number of companies with smoking policies has increased four- fold," from 16 percent in 1980 to 60 percent in 1988, the Administrative Management Society Foundation reported in its ninth annual Smoking Policies Survey, 7 ER W 370 (March 20, 1989). Many of the policies have grown in response to employees' anxiety about the air they breathe. The 1986 Surgeon General's report concluded that "[i]nvoluntary smoking is a cause of disease, including lung cancer, in healthy non-smokers." Such informa- tion gives many workers reason for concern about office air quality and the effects of sidestream smoke on their health, surveys find. In each of the past three years, 73 percent of all companies surveyed by AMS reported that they have received objections or complaints from non-smokers about the smoking habits of co-workers.' Similarly, a 1987 survey conducted by The Bureau of National Affairs, Inc. and the American Society for Personnel Administration, which was featured in the BNA special report, Where There's Smoke, found that more than half (54 percent) of the 623 surveyed organizations had a smoking policy. Of those, 71 per- cent had adopted policies out of concern for employ- ees' health and comfort, and 54 percent had created the policies because of complaints from employees. For whatever the reasons, prohibitions on smoking in all or parts of the workplace appear to be spread- ing. Sixty percent of the 1989 AMS survey respondents have an official smoking policy, up 15 percent from the previous year. One quarter of the 283 companies AMS surveyed restrict smoking in every area of the company, up from 14 percent in the 1988 survey. AMS interprets these figures as a trend that indicates that "once restrictions are established, they tend to grow into a complete ban." Common Area Bans Most Prevalent Two-fifths of the AMS survey respondents, from a cross section of AMS member companies, indicated that the areas in their companies most likely to be banned for smoking are public reception areas, hall- ways, and meeting rooms. Other than pressure from employees, employers give a variety of other reasons for instituting smoking policies. Fifty-nine percent of the personnel execu- tives who responded to the 1989 AMS survey believe that smoking reduces productivity, and 69 percent believe that smoking increases the cost of medical insurance premiums. Others think that workplace smoking affects maintenance costs (44 percent) and the costs of absenteeism (37 percent). Effects On Absenteeism In fact, several surveys have attempted to deter- mine if there is a difference in the absenteeism rate of smokers and non-smokers with differing conclusions. Excess sick leave was taken by smokers regardless of their sex, marital status, or age group, according to one study of Missouri state workers, conducted in the 20-month period from January 1983 to August 1984. Mark Van Tuinen, director of the Missouri Bureau of Health Services Statistics, and Garland Land, depu- ty director of Health Resources for the state collected data on 406 employees representing 97 percent of the State of Missouri's Department of Health. Sick leave records for the employees were used to collect the statistics. The study concluded that the 97 department employees who smoked used 1.5 more sick-leave days per year on average per employee than non-smoking employees during the 20-month period studied. Tuinen and Land note that the results of the re- search are consistent with data from a 1976 National Health Interview Survey (NHIS), collected by the Na- tional Center for Health Statistics (HHS), which indi- cated absenteeism from work is higher among smok- ers than non-smokers. The 1976 survey revealed that males who smoked 25 or more cigarettes per day were absent 5.7 days per year, compared with 4.3 days for males who never smoked, a difference of 33 percent. Females who smoked heavily were absent 9.3 days, whereas non-smoking women averaged 5.1 days, a difference of 82 percent. Conflicting results were reported by the National Chamber Foundation, the research arm of the U.S. Chamber of Commerce, whose research found that smoking is not a factor causing absenteeism among workers, 7 ERW 649 (May 22, 1989). The study was based on 1983 through 1985 data collected by the National Center for Health Statistics. The study examined three life-style characteristics- smoking, drinking, and physical activity-and found that only physical activity has a statistically signifi- cant impact on work attendance. The Chamber con- cluded that less absenteeism could be expected from physically fit workers. Effects On Insurance Premiums Most employer-provided insurance policies receive no price break for non-smokers, because the plans are group, not individual, policies. Although nearly all life insurers offer non-smoker discounts, few health insur- ers follow suit, the U.S. Public Health Service says, despite a 1987 National Association of Insurance Com- missioners (NAIC) resolution supporting premium dif- ferentials in group as well as in individual health policies. 10-23-89 BNA's Employee Ralations Weekly 0739-3018/89/50+.50

8 (Vol. 7) BNA's EMPLOYEE RELATIONS WEEKLY The 1989 Surgeon General's Report, Reducing the Consequences of Smokirig, cites a 1987 NAIC study as the most complete survey of premium differentials for individual health and disability policies. The sur- vey found that some one in seven commercial health carriers and Blue Cross/Blue Shield plans offered non- smoking discounts ranging from 3 to 15 percent on individual policies. Only a few carriers have introduced discounts of 2 to 3 percent on group policies, however, where certain percentages of the groups are non-smokers. The NAIC survey findings were based on responses from three- quarters of all Blue Cross; Blue Shield plan carriers in the United States and 458 carriers in Illinois offering individual health and disability insurance. Smoking Demographics The prevalence of smoking among adults in the United States decreased from 40 percent in 1965 to 29 percent in 1987, according to the 1989 Surgeon Gener- al's smoking report, and "nearly half of all living adults who ever smoked have quit," the report states. Smoking prevalence in this country has declined at a steady rate since 1974. If this trend continues, in the year 2000, 22 percent of the adult population will be smokers, according to data collected by the National Center for Health Statistics through the National Health Interview Surveys. Nevertheless, the overall decline in smoking preva- lence has been unequal across society, NHIS reports. Although smoking statistics differ by gender and race, national trends in smoking prevalence by educational category from 1974 through 1985 show that education has replaced gender as the major sociodemographic predictor of smoking status. Smoking prevalence has declined across all educa- tional groups, but the decline has occurred five times faster among the higher educated compared with the less educated. "Educational level has become the ma- jor demographic predictor of whether an individual will smoke cigarettes. There is considerably more cessation activity occurring among higher-educated than among less-educated groups, and the gap is wid- ening over time," reports the national Office on Smok- ing and Health at the Centers for Disease Control. Data from 1987 show that 35.7 percent of the U.S. population without high scl?ool diplomas smoke. High school graduates appear to be less likely to smoke (33.1 percent), and an even smaller percentage (26 percent) of individuals with some college background smoke. Only 16.3 percent of college graduates in the country are smokers, the 1987 data show. Other demographic breakdowns of smokers reveal less dramatic differences. More men (31.7 percent) than women (26.8 percent) smoke, and more blacks (34.0 percent) than whites (98.8 percent) smoke. Company smoking policies are bound to be unevenly received by employees. In an effort to gain the great- est acceptance possible, employers looking for a smooth transition to a new policy have enlisted help from special in-house and outside sources, such as consultants, steering committees, and wellness pro- grams. Their efforts often include smoking cessation programs, incentives, and education drives. Smoking Policy Transition The 1987 BNA/ASPA survey showed that more than half of the responding companies have taken measures to encourage employees to stop smoking. Companies with smoking policies appear much more likely to promote quit-smoking efforts (64 percent) than organi- zations without policies (38 percent). Also, 42 percent of the 623 surveyed companies had distributed quit-smoking literature and 29 percent sponsored employee wellness programs. A fifth of the personnel executives surveyed said that their compa- nies sponsored smoking cessation programs during and/or outside of work time. Workers who participate in quit-smoking programs offered outside the com- pany are reimbursed by 14 percent of the firms. Cash awards to workers who stop smoking were rare in 1987, with only 5 percent offering the incentive. The different means of encouragement are met with varying success rates, the survey found. While only 11 percent of respondents who used educational litera- ture said it had been successful, 43 percent of the firms' wellness programs were perceived as success- ful in changing employee smoking habits. About one in three of the organizations that have held in-house programs indicated that these programs achieved their goals. Employee Involvement Overall company smoking cessation promotion ef- forts with a high level of organizational support have been found to be instrumental in the success rate of workplace smoking abstinence programs. In an effort to enhance the effectiveness of smoking cessation programs at 14 companies in Saint Louis, the American Lung Association of Eastern Missouri in conjunction with a team led by Edwin B. Fisher Jr., director of health behavior research at Washington University, designed individual programs tailored to each firm's organizational structures and social net- works. The team acted as "consultants who trained employees to offer grass-roots programs with broad- based activities," Fisher told BNA. The programs were meant to be a part of the work environment 40 hours a week, instead of just weekly meetings. Program results indicated that an active steering committee combined with clear management support may well result in greater participation and activity among smokers, Fisher reports. Company success rates differed as each was a unique setting and activ- ity levels differed, but 12 months after the programs' completion, most of the company sites had abstinence rates of close to 30 percent. Fisher describes that rate as a "benchmark for state-of-the-art programs in smoking cessation literature." The most dramatic results were found among smok- ers who did not join the smoking cessation program but quit smoking on their own during the campaign. Rates of abstinence among this group ranged from 5 to 15 percent. In contrast, estimates of the rate of spontaneous abstinence among smokers in the general public run about 2 to 3 percent. 0 10-23-89 C,-oyright 0 1989 by The Bureau of National Affairs, ino., Washington, D.C. 20037 0739-3016/89/50+.50

(Vol. 7) 9 LEGAL DEVELOPMENTS Cases & Arbitrations COURTS RECOGNIZE RIGHT TO LITIGATE, BUT NOT RIGHT TO SMOKE-FREE WORKPLACE Whether or not smoking in the workplace consti- tutes a hazard continues to be a controversial legal issue, and in all likelihood will remain so for the forseeable future. Although safety, health, and civil rights issues are raised by advocates on both sides of the controversy, the courts have been reluctant to intervene. Cases appear sporadically, but courts have been reluctant to read into the law either a right to smoke or a right to work in a smoke-free environment. States and municipalities have successfully enacted legislation and regulations that restrict workplace smoking. Challenges to state and local laws to limit smoking are rare. The first major case on workplace smoking ap- peared in New Jersey in 1976. Since that time, suits involving smoking have tested a number of claims, including: • Constitutional rights; • Common law duty; • Handicap discrimination; • Entitlements to unemployment insurance, work- men's compensation, disability insurance; and • Violations of the statutory or contractual rights of unionized employees. Constitutional Rights The first major case to rely on a constitutional argument for a smoke-free workplace was Gasper v. Louisiana Stadium & Exposition District, 418 FSupp 716 (DC ELa 1976), aff'd 577 F2d 897 (CA5 1978); cert den, 439 US 1073 (1979). The plaintiffs charged that smoke in enclosed public space, the Louisiana Superdome, violated First, Fifth, Ninth, and Fourteenth amendment rights. The U.S. District Court for Eastern Louisiana rejected the argument, saying that the Constitution does not provide judicial reme- dies for every social and economic ill. According to the court, there is no fundamental, protected right to breathe air free from tobacco smoke. Later the same year, Gasper was cited in a North Carolina Supreme Court case that denied a request for an injunction that would have required a county to ban smoking in all its public buildings. According to the state high court, the legislature did not intend to include everybody with "any pulmonary problem" within the class defined as handicapped. (GASP v. Mecklenburg County, 42 NCApp 225, 256 SE2d 477 (1979). Other cases involving constitutional issues that have made it to the courts include: • Kensett v. State of Oklahoma, 716 F2d 1350 (CAlO 1983) in which it was alleged that the employer assaulted a worker by permitting smoking, and that failure to provide a smoke-free workplace violated Constitution; • Rossie v. State of Wisconsin/Dept. of Revenue (1 IER Cases 1048) in which a state court held that a Wisconsin statute prohibiting smoking in all but cer- tain state controlled buildings has a reasonable basis and does not deny equal protection under the Constitution; • Grusendorf v. Oklahoma City (2 IER Cases 51), in which the U.S. Court of Appeals for the Tenth Circuit held in 1987 that a rule prohibiting firefighter trainees from smoking on or off the job was reason- able. The court questioned the fact that the rule only applied to trainees, which seemed strange because smoking could affect all firefighters, but observed that a contract provision prohibited imposing a no- smoking rule on the bargaining unit; • Boreali v. Axelrod (2 IER Cases 671) in which the New York state Court of Appeals in 1987 upheld a lower court decision striking down regulations limit- ing workplace smoking promulgated by the state Pub- lic Health Council. The lower court held that PHC exceeded its statutory authority by making the regula- tions and said the proper forum for workplace restric- tions was the legislature. In July 1989, a measure passed by the New York state legislature restricting workplace and public smoking was signed by Gov. Cuomo, 7 ERW 869 (July 10, 1989). The law, which goes into effect Jan 1, 1990 for public areas and April 1, 1990 for workplaces, is similar to the regulations struck down in 1987. Common Law Duty The first major case on workplace smoking was decided in 1976 and involved the common law duty of an employer to provide a safe working place (Shimp v. New Jersey Bell Telephone Co., 145 NJ Super. 516, 368, A.2d 408 (1976)). A non-smoking secretary, claiming she had a severe reaction to cigarette smoke, sued her employer for denying her a workplace free from injurious and toxic substances. A New Jersey court found a common law right to a safe work environment and ordered the employer to restrict smoking to non-work areas. While the case was viewed as a landmark, it did not spawn much litigation based upon the same theory. In fact, seven years later in Smith v. Blue Cross & Blue Shield of New Jersey, No. C-3617-81E (NJ SuperCt 1983), another New Jersey court denied an employee's request to force broader smoking restrictions, stress- ing the need to balance smokers' and non-smokers' rights. Although the employee was hypersensitive to tobacco smoke, the court said Shimp had gone to far, was "too sweeping," and went "well beyond what is necessary to ensure a safe working place." Some states have recognized that an employee has a right to a trial when alleging that an employer has an 10-23-89 8NA's Employee Relations Weekly 0739-3016/891$0+.50

10 (vol.7) obligation to provide a safe working environment. In Missouri, for example, an employee contending that headaches, chest pain, nausea, memory loss, and other symptoms attributed to environmental tobacco smoke brought suit for injunctive relief based upon the em- ployer's duty to provide a reasonably safe working environment (Smith v. Western Electric Co., 643 SW2d 10 (Mo App Ct 1982). In the first major workplace smoking case in 1976, a New Jersey court found a common law right to a safe work environment and ordered an employer to restrict smoking to non-work areas. In Shimp, management had offered the worker a lower-paying, smoke-free job and to provide a respira- tor. Although the employee had failed to gain relief at trial initially, the state appeals court ruled that the plaintiff had not been afforded the chance to prove that tobacco smoke was harmful to employees or that the employer continually breached its duty to provide a safe workplace. On remand, the trial court found that the plaintiff did not prove irreparable harm and the company was not obligated to provide separate accommodations (Smith v. AT&T Technologies Inc., St. Louis Cty Ct, No. 446121, 4/23/85). The case was one in which Shimp was cited in support of the common law right to a smoke-free workplace. Industrial Insurance Case Another well-known case on the state level is Mc- Carthy v. Washington, 3 IER Cases 710 (1988). A state employee claimed that she contracted a chronic obstructive pulmonary disease from working in a smoke-filled office environment. After complaining to her superiors about workplace smoke, the employee quit and sought industrial insur- ance benefits. Benefits were denied on the grounds that the alleged injury was not work related, and the employee sued the employer for negligence. A state appeals court determined on first impression that the employer "negligently failed to provide the worker with a safe and healthful place of employment." On appeal, the state supreme court found on June 30, 1988, that the the Washington Industrial Insurance Act does not bar a common-law tort claim asserting breach of duty to provide a safe workplace. However, the court did not decide whether or not an employer has a duty to protect non-smokers from smoke in the environment. At the federal level, the U.S. Circuit Court of Ap- peals for the District of Columbia has held that em- ployers have no obligation to accommodate individual workers who don't smoke, are particularly sensitive to cigarette smoke, and want a smoke-free environment (Gordon v. Raven Systems & Research Inc., 462 A2d 10 (CA DC 1983)). The court stressed that it had no BNA's EMPLOYEE RELATIONS WEEKLY evidence that environmental tobacco smoke was harmful to all workers and said "the common law does not impose upon the employer the duty or burden to conform his workplace to the particular needs or sensitivities of an individual employee." Handicap, Racial Bias Claims A recent workplace smoking case involving a handi- cap discrimination claim is a suit seeking $4 million from the Tennessee Valley Authority for failing to accommodate an employee with pulmonary emphyse- ma. The suit cited the 1986 National Academy of Sciences study and the 1986 Surgeon General's report that highlighted the dangers of passive smoking. Anna M. Carroll charged that the TVA and its managers not only failed to provide a safe working environment, but they discriminated against her as a handicapped individual after she complained about smoke in the workplace. Following a request by the defendants for summary judgment, the U.S. District Court for the District of Columbia dismissed a number of the plaintiff's claims, but held that claims of failure to maintain a smoke-free workplace could proceed (Carroll, et al. v. Tennessee Valley Authority, USDC DC, No. 87-1957 (JHG), 3/7/88). In April 1988 the court denied a motion by the plaintiff to amend the complaint, ruling that the case must proceed solely on the original claims of failure to provide a safe workplace and unlawful discrimina- tion. Carroll had sought to include a charge that TVA had discharged her in retaliation for filing suit. In November 1988, the parties settled out of court for an undisclosed sum, 7 ERW 8 (Jan. 2, 1989). Also in November 1988, TVA announced an agency-wide ban on smoking in all offices, replacing a policy that permitted discretion. In a leading case involving handicap accommodation [Vickers], the employ- ee's request for a workplace complete- ly free from smoke was rejected. The court said the rights of smokers and non-smokers must be balanced. A leading case involving handicap accommodation is Vickers v. Veterans Administration, FEP Cases 1197 (DC W.Wash 1982). An employee sued the Veter- ans Administration under the Rehabilitation Act of 1973. The employee proved he was handicapped by small amounts of tobacco smoke. The court ruled that the VA offered to reasonably accommodate the handi- cap, but that the plaintiff failed to take action that would reduce his exposure to smoke. The employee's request for a workplace completely free from smoke was rejected. The court said the rights of smokers and non-smokers must be balanced. Some legal theorists have proposed that a racial bias claim could be made against an employer that restricted employment to non-smokers. Some demo- 10-23-89 Copyright © 1989 by The Bureau of National Affairs, Inc., Washington, D.C. 20037 0739-3016189/$0+.50

SPECIAL SUPPLEMENT graphic studies have shown that a greater number of black males than white males smoke. The doctrine underlying such a claim would be that enunciated in Griggs v. Duke Power Co. (3 FEP Cases 175). However, the U.S. Supreme Court ruling in June 1989 in Wards Cove v. Atonio, 7 ERW 739 (June 12, 1989), would place a greater burden on plaintiffs to show statistically that a company's no-smoking policy was specifically geared toward barring a minority from employment. Entitlements To Compensation In Parodi v. Merit Systems Protection Board, 690 F.2d 731 (CA9 1982), a federal worker was found to be disabled by hypersensitivity to tobacco smoke and thus entitled to disability payments. However, the court said that because the disability was environmen- tal, not physical, disability benefits would not be re- quired if the plaintiff were provided a smoke-free work area. In 1984 the plaintiff received an out-of- court settlement of full disability retirement pay of $500 per month and a $50,000 lump-sum payment. In Colorado, a state court denied unemployment compensation benefits to an employee who quit work over the presence of tobacco smoke in the workplace (Rotenberg v. Industrial Commission, 590 P.2d 521 (Colo. App. 1979)). The court found that the employee failed to demonstrate a sensitivity to smoke. Under Colorado law, employees who quit because of "unsa- tisfactory or hazardous working conditions" may re- ceive full unemployment benefits. The outcome was favorable, however, for a Califor- nia employee who did demonstrate a sensitivity to smoke (Alexander v. Unemployment Insurance Appeals Board, 104 Cal.App.3d 97,163, Cal Rptr. 411 (1980)). An X-ray technician provided medical evi- dence supporting her contention that she was allergic to smoke and could only engage in full-time work in a smoke-free environment. In support of her position, the employee also showed that other offices in the company were operated smoke-free and that she was willing to transfer. The state court granted unemploy- ment benefits. The Unionized Workplace The ability of unionized employers to determine how workplace smoking should be controlled may be limited despite contractual obligations to ensure a reasonably safe workplace. Employers may have a duty to bargain over smok- ing restrictions or changes in smoking policies, courts have held. For example, a county work rule banning smoking by public employees at work stations was struck down by the Commonwealth Court of Pennsyl- vania in 1983. The court affirmed a Pennsylvania Labor Relations Board ruling that a no-smoking policy could not be imposed without first bargaining (Com- monwealth of Pa. v. Pa. Labor Relations Board, No 2167 C.D., Pa. CommonwlthCt 1980, 1983). Other cases involving the duty to bargain include Butcher Boy Refrigerator Door Co. v. NLRB, 290 F.2d 22 (CA 7 1961); Gallenkamp Stores v. NLRB, 402 F.2d 525, 529, n.4 (CA 9 1968); and Johns-Man- ville Sales v. IAM, 621 F.2d 756 (CA 5 1980). (Voi.7) 11 Arbitrators' Approaches Arbitrators examining workplace smoking disputes rely upon specific contract wording and the history of restrictions or freedoms at the specific worksite. Gen- erally, arbitrators uphold employers' rights to impose and enforce "reasonable" smoking restrictions to safe- guard life and property. For example, in grievances involving smoking near hazardous materials where a policy is clearly estab- lished and the area is clearly marked, arbitrators will usually support employer-imposed discipline if it is reasonable and fairly applied. Reasonable restrictions may also be upheld when production considerations, management's right to con- trol the workplace, and insurance costs come into play. Arbitrators tend to reverse disciplinary decisions where management has permitted smoking violations to go unpunished in the past or has failed to provide sufficient proof that the alleged misconduct occurred, according to published decisions. A number of recent arbitrations illustrate the range of approaches that arbitrators have devised to tackle workplace smoking issues. Arbitrators have looked at a company or agency's business and decided that an altered smoking policy was consistent with a stated mission. For example, an arbitrator found that a hospital did not violate its collective bargaining agreement when it unilaterally instituted a totally smoke-free workplace policy (Methodist Hospital and Service Employees Inter- national Union Local 113; 91 LA 968). Before instituting the policy, the hospital polled employees about their smoking preferences and 75 percent of the respondents expressed interest in a smokeless workplace. Although the union argued that the rule was unilateral, imposed outside of the man- agement rights clause, prohibited by the maintenance of benefits clause, regulated by state law, and unrea- sonable, the arbitrator found that management sought and obtained substantial input from the workforce, which put the union on notice of the proposed change. Employee Backing Boosts Reasonableness The number of employees supporting the ban in the poll, as well as the unanimous recommendation of a joint committee examining the issue supported the reasonableness of the employer's action, said the arbi- trator. He noted that the maintenance of benefits clause referred to "economic benefits" and relief per- iods, not what employees did on those periods. In addition, the arbitrator found that the rule was intend- ed to "promote good health on the part of the employ- ~ ees and other users of the hospital," which also en- p hanced the "basic mission and business objectives" of the institution. Finally, the arbitrator concluded that state law ~ required health institutions to be smoke free by Jan. 1, ~ 1990. The legislation, he observed, created no bar to a~ hospital implementing an earlier smoke-free policy. Similarly, an arbitrator found that a state agency's ~ modification of its workplace smoking policy to re-LI strict smoking to departmental break rooms was con-li 1fl-23-$9 BNA's Employee Relations Weekly 0739-3016/89/$0+.50