Commenting on the challenges facing employers that adopt smoke-free zones, Brett Coburn, partner in the firm’s Labor & Employment Group, noted that while smoke-free workplaces aren’t new, there are complex issues surrounding them.
“My simple formula is: If you’re inclined to do it, then you should,” he said, adding that many counties and municipalities already have some type of smoking ban, at least indoors.
“If you’re going to have a policy, make sure you have a clear policy about what is permitted and not permitted, and does it cover just indoors or outdoors?” Coburn said.
He also noted that the policy should be clearly communicated in the employee handbook and new-hire paperwork.
“There may be people out there who have a misconception about their rights as smokers,” he said. “There are states … that do prohibit employers from refusing to hire smokers. There really isn’t anything that would protect someone’s right to smoke in the workplace. It’s not about what you do when you’re home or in your car but when you’re at work.”
Coburn also warned of risks stemming from the Americans with Disabilities Act (ADA).
“If you have asthma and you say, ‘I can’t be around cigarette smoke,’ that’s a very real scenario and in all likelihood, the employer should accommodate. Nonsmokers could have ADA claims if the employer doesn’t do what he needs to do,” Coburn said. “It’s common knowledge that secondhand smoke is harmful and these claims can be pretty viable. Decades ago, that was subject to dispute. In this day and age, that’s behind us.”
Asked about e-cigarettes, Coburn said: “There are a lot of questions surrounding that. The jury is still out on how safe those things are for users.
“The interesting thing is that they may be used temporarily as a smoking cessation tool,” he added. “That’s why I think there’s not a consensus about permitting them in the workplace, and I don’t know when there will be. You don’t want someone sitting at a desk smoking an e-cigarette – just the look of it is bad, but you don’t want to discourage them from using them to try to quit, either.”
Coburn continued: “When determining whether or not it’s permitted in the workplace, it’s easier just to say, ‘No, they are too much like tobacco, sorry.’ It’s easier and cleaner to just ban it all. You don’t want to go asking people questions about why they are using e-cigs that might start to get into the medical realm, because you run legal risks when requesting medical information from employees.”