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Regulating Smoking at Work
Employers have a duty to provide a safe workplace for their employees. This means not only the equipment used by the employees but also the space they work in, including the quality of the air they breathe. While the federal government agency responsible for overseeing workplace safety, OSHA, has yet to declare smoking a hazard to a safe workplace, many states have stepped in and regulate smoking in the workplace. As scientific studies shed light on the dangers of secondhand smoke to nonsmokers, there is mounting public pressure to regulate smoking in areas of public use.
State governments have broad powers to protect and promote the health and safety of their citizens. Under this rationale, states are allowed to regulate smoking in public places — especially confined public places, such as restaurants, bars, schools and hospitals. The workplace also may be included in the growing list of places where smoking is either restricted to a designated area or banned altogether.
There also have been efforts to ban smoking in open public places, such as on city streets on in public parks. While state bans on smoking in public places without qualification have been struck down for being too broad, bans limited to certain types of open public places have been upheld in some states.
States may have statutes that limit smoking in public places. For example, many states have public accommodation laws that regulate smoking in public places and have been extended to include work environments. States also may have public health regulations that control smoking in only certain places, like hospitals, schools and common carriers.
Smoking at Work
Increasingly, employers are creating policies to regulate smoking at work. The policies may include an outright ban on smoking anywhere on the employer's premises, or may designate a certain area where employees may go to smoke. Employers also may have initiatives to encourage employees to quit smoking and provide incentives for those who successfully complete the employer-sponsored program.
Under state and federal antidiscrimination laws, such as the Americans with Disabilities Act (ADA), workers with sensitivities to smoke may be classified as disabled, thus preventing employers from discriminating against them based on their disability. Further, employers also may be required to provide these employees with reasonable accommodations, which may include restricting where employees are permitted to smoke.
In response to increasing state regulation of smoking in public places and at work, many smokers feel their rights to enjoy a legal product have been limited and have begun seeking legal remedies to protect their rights. Under antidiscrimination statutes, employers are prohibited from discriminating against employees for certain activities they enjoy once they leave the workplace, including smoking tobacco products. Employees who have suffered negative employment actions because they smoke may be able to bring an antidiscrimination claim against their employer.
For more information on smoker rights, antidiscrimination claims or other employment law issues, contact a knowledgeable employment law attorney in your area today.
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