Privacy Issues in the Workplace

3. S MOKING

Generally, smoking in the workplace encompasses two different issues:

 What obligation does an employer have to accommodate the rights of non- smokers; and  Can employers ban employees from smoking altogether, both on- and off-duty.

a. The Rights of Non-Smokers Many states and municipalities have adopted smoking restrictions in the workplace that apply to both public and private employers. These new statutes and ordinances impose a duty on employers to minimize a worker’s exposure to smoke. In enacting Labor Code section 6404.5, the California Legislature intended to prohibit the smoking of tobacco products in all enclosed places of employment. Only certain facilities are excluded from this restriction. 602 But places which are not covered by Section 6404.5 are subject to local regulation. 603 Under Government Code section 7597, smoking is not allowed inside or in an outdoor area within 20 feet of a main entrance or exit to any state-owned, occupied or state-leased and occupied building or in passenger vehicles owned by the state. With regard to public buildings, the California Attorney General has opined that counties have the right to enact ordinances banning all smoking in county buildings, and may enforce them against members of the public within their incorporated territories. 604 Beyond state laws and local ordinances, federal court decisions have held that an employee who is unusually sensitive to tobacco smoke is “handicapped” within the contemplation of Section 504 of the Rehabilitation Act of 1973, Title 29 U.S.C. section 794. Courts have held that someone with such a condition is physically handicapped within the protection of the FEHA. 605 As a result, employers are now under a duty to reasonably accommodate the needs of those who are sensitive to cigarette smoke. 606 b. Employer’s Right to Prohibit Employees from Smoking Altogether Whether employers can prohibit employees from smoking both on and off-duty is generally related to the issue of an employer’s right to regulate off-duty conduct. In most situations, it is unlikely that employers may prohibit smoking away from the work site. However, certain professions, such as firefighters and policemen, are justifiably expected to maintain high standards of physical fitness due to the unique rigors of this kind of work. Moreover, under Labor Code section 3212.1, active firefighters who develop cancer (including lung cancer) are presumed to have contracted this disease out of and in the course of their employment. Consequently, fire departments may find their exposure to disability and workers compensation claims significantly increased for firefighters who do smoke. While this is still an emerging area

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 172