Blowing smoke out of the workplace.

The legal community and news media have been focusing increased attention lately on legal and regulatory challenges to the tobacco industry. Eleven states have filed or are about to file lawsuits against tobacco companies for recovery of tobacco-caused Medicaid costs,(1) a class action based on nicotine addiction has been certified,(2) dozens of individual suits are awaiting trial, and the FDA has proposed regulating tobacco products as drug-delivery devices.(3)

One tobacco company, Liggett Group, has already settled several states' suits and one class action.(4) Liggett's unprecedented step may be an early indicator of how this "third wave" of tobacco litigation may change the way the tobacco industry operates in the United States.(5)

The legal battles around the issue of environmental tobacco smoke (ETS) in the workplace, however, have been heating up much more quietly in recent years. Indeed, the variety of claims by injured workers suggests promising new legal avenues to complement the more traditional workers' compensation or disability benefits claims.

Research shows that nearly 48 percent of nonsmoking, working adults are exposed to ETS at work or home.(6) Overall, 88 percent of the U.S. population is exposed, at varying levels, to ETS-also known as secondhand smoke.(7) As awareness of the ETS risks grows, tolerance for this exposure diminishes. The EPA's 1992 report on secondhand smoke had a profound impact on the way many people regard the risks posed by "involuntary smoking."(8)

When an ETS-caused workplace injury occurs, plaintiffs can now rely on a growing body of authoritative medical literature supporting their central contention that ETS is a serious health hazard.(9) Of course, plaintiffs must also establish that their injury was caused by exposure to environmental tobacco smoke in the workplace.

Although these claims are heating up now, they are not new. The first ETS case, decided 20 years ago, granted an injunction to an office worker to ensure a smoke-free area in her workplace.(10) The court said:

The evidence is clear and

overwhelming. Cigarette smoke

contaminates and pollutes the air,

creating a health hazard not

merely to the smoker but to all

those around her who must rely

upon the same air supply. The

right of an individual to risk his or

her own health does not include

the right to jeopardize the health

of those who must remain around

him or her in order to perform

properly the duties of their jobs.(11)

The cases pending; today fall into a variety of categories and put forth a variety of legal theories.

Class Action Approach

In December 1994, the first class action for workplace ETS exposure was certified in Broin v. Philip Morris Cos.(12) The class includes all current and former nonsmoking flight attendants-estimated to number about 60,000-who suffer from lung cancer, other diseases, or increased risk of disease from inhaling tobacco smoke while on the job.

The complaint asserts claims based on strict liability, breach of warranty, negligence, fraud, and conspiracy. The central question is whether the tobacco companies withheld information or disseminated misinformation concerning the potential health risks their products pose to nonsmokers. Evidence from the internal documents of Brown & Williamson Tobacco Corp. suggests that the company privately conducted research indicating that ETS was carcinogenic while publicly denying that it posed any health risk.(13)

The certification of the Broin class suggests the possibility that other ETS injured classes such as casino, bar, or restaurant employees could raise similar claims against the cigarette industry.

In workplace ETS litigation, the plaintiff generally is unable to ascertain which company's smoke caused the lung cancer or other injuries. It is usually necessary to sue all the principal cigarette manufacturers, including American Brands, Brown & Williamson, Liggett Group, Lorillard Tobacco Co., Philip Morns, and R.J. Reynolds Tobacco Co. The class action approach to ETS litigation is important because the potential benefits to a large class help make worthwhile the enormous investment that is involved in bringing in all the cigarette companies as defendants.

Individual Claims

Several individual plaintiffs are taking on the cigarette industry for injuries caused by secondhand smoke exposure. The first suit was filed by Burl Butler, a lifelong nonsmoker who owned a barbershop in Jackson, Mississippi, for many years. Butler allowed smoking in his shop, not knowing that ETS posed serious health risks. In fact, each chair in his shop had a built-in ashtray for his smoking customers' convenience.

Butler contracted a fatal case of lung cancer. His lawsuit, originally brought in 1992, was refiled as a wrongful death case in 1994.

Butler v. Philip Morris Cos. alleges that as a result of the design, testing, manufacturing, marketing, and assembly choices and practices of the defendants, cigarettes are defective and unreasonably dangerous.(14) The complaint also alleges that the defendants failed to effectively warn "innocent nonsmoking bystanders" like Butler about the harm caused by breathing secondhand smoke. Had these warnings been issued, Butler might have put up a "no smoking" sign and might never have become ill. Trial is likely to take place early next year.

Another pending case is Dunn v. R.J. Reynolds Holdings Corp., involving a nonsmoking nurse who worked for 17 years at a smoky Department of Veterans' Affairs hospital in Indiana before dying from lung cancer at 57. Her husband, Craig Dunn, alleges that the cigarette company defendants were negligent in marketing an essentially defective product because they knew that smoking could cause health problems for nonsmokers as well as smokers.(15)

Significantly, a U.S. Department of Labor workers' compensation program last year awarded death benefits to Dunn for his wife's workplace injury.(16) The program director's finding that she was fatally injured by workplace ETS exposure is not binding against the tobacco companies, but it demonstrates that the requisite proof that ETS has caused a specific disease is indeed possible.

Disability Issues

Since 1993, several plaintiffs have invoked the Americans with Disabilities Act (ADA)(17) in seeking redress for secondhand smoke exposure at work. They have claimed that their ETS-related medical conditions required reasonable accommodations by employers to protect them from secondhand smoke at work.

The ADA requires employers with 15 or more employees(18) to make "reasonable accommodations" for the known physical limitations of an otherwise qualified individual with a disability.(19) The act defines "disability" as including a physical impairment that substantially limits one or more major life activities.(20) "Major life activities" include breathing and working,(21) both of which can be substantially limited when people with severe respiratory or cardiovascular diseases are exposed to ETS.

In these cases, plaintiffs must identify themselves as disabled under the ADA and request reasonable accommodations from their employers. For people who cannot tolerate tobacco smoke for medical reasons, a reasonable accommodation would be to provide a smoke-free work environment.

Employers can avoid providing reasonable accommodations to disabled employees if doing so would impose an "undue hardship" involving significant difficulty and expense.(22) But unlike the l physical or architectural modifications l that are often necessary to provide reasonable accommodations to people with other disabilities, such as workers who use wheelchairs, modifications for workers harmed by ETS usually involve little cost. Often, all that is required of the employer is to post "no smoking" signs and enforce a smoke-free policy.

If unable to negotiate a solution with an employer, an employee with an ETS-related disability may file a discrimination complaint with the U.S. Equal Employment Opportunity Commission or a state human rights agency. After receiving a "right to sue" letter from the agency, the claimant generally has 90 days to file suit under the ADA.

Currently, about a half dozen cases are working their way through the courts. The plaintiffs suffer from asthma, heart disease, lung cancer, and other severe medical conditions caused or exacerbated by ETS exposure.(23)

A decision by the Second Circuit Court of Appeals last year bolstered the use of the ADA in workplace secondhand smoke cases. Staron v. McDonald's Corp. was brought by three asthmatic children and two women with lupus seeking to make the McDonald's and Burger King restaurant chains smoke-free.(24) The court, reversing a lower court's decision to grant McDonald's motion to dismiss, stated, "[W]e see no reason why, under the appropriate circumstances, a ban on smoking could not be a reasonable modification [under the ADA]."(25)

Although this decision involves the ADA's public accommodations provisions (Title III) rather than its workplace provisions (Title I), the ruling clearly supports the proposition that the act can be as appropriate a remedy for people with ETS-related disabilities as it is for people with other impairments.

Other Approaches

Past cases dealing with involuntary smoking in the workplace have obtained a variety of legal relief, including workers' compensation,(26) disability benefits,(27) and unemployment insurance.(28) Yet, new approaches continue to emerge.

One recent case was filed in Georgia under the Federal Employers' Liability Act(29) by a nonsmoking former railroad worker who developed lung cancer after 13 years of sharing company-provided bunk cars with smokers.(30) Although he complained about ETS, the company failed to adopt a no-smoking policy.

The plaintiff, Larry Thaxton, also alleges that a company-sponsored chest X-ray revealed a cancerous spot on his lung, but the company delayed more than two months before notifying him. His complaint charges his former employers with negligence for failing to provide him with a safe workplace, to notify him promptly of the X-ray results, and to adopt a no-smoking policy despite knowing that ETS is a human carcinogen.

In another case, a former convenience store clerk in Weymouth, Massachusetts, was fired after complaining about her store manager's smoking. Elizabeth Dugan contacted the town's board of health about her manager's in-store smoking, which violated municipal health regulations. Soon after, she was fired, allegedly in response to the nebulous complaints of an unnamed customer.

In addition to banning smoking in stores, the town's health regulations prohibit retaliating against a person exercising her rights under the regulations. Dugan filed suit against the convenience store chain that fired her, alleging violation of the health regulations, intentional infliction of emotional distress, and infringement of her First Amendment right to petition her local government.(31)

Increasingly, local and state legislation and regulation restrict smoking in the workplace. In fact, with the exception of some restaurants and bars, almost all workplaces in California, Maryland, and Washington state are now smoke-free, thanks to legislative and administrative action. In 1994 the U.S. Occupational Safety and Health Administration proposed regulations that would prohibit smoking in virtually all workplaces in the country.(32) But the current antiregulatory climate in Washington may deter implementation of the proposal.

There is voluminous scientific evidence implicating ETS as a health hazard. This evidence, along with the evidence of tobacco companies' misconduct in hiding their own ETS research, is likely to help pave a successful path for the many pending secondhand smoke actions. Success in these cases may finally clear the air of the industry's disinformation and blow ETS out of the workplace.

RELATED ARTICLE: Other Significant ETS Decisions

The issue of environmental tobacco smoke has arisen in a wide variety of cases. The following are significant rulings on ETS exposure in settings other than the workplace.

In the home. In child custody cases involving children with conditions making them especially vulnerable to ETS injury, courts are increasingly granting custody to the nonsmoking parent. Consider these examples.

* Unger v. Unger, 644 A.2d 691 (N.J. Super. Ct. Ch. Div. 1994). The court noted that "clearly, the effect of ETS is a factor that may be considered by a court in its custody determination as it affects the safety and health of the children. Similarly, the fact that a parent smokes cigarettes is a permissible parental habit to consider when determining what is in the best interests of the children because it may affect their health and safety."

* Lizzio v. Lizzio, 162 Misc. 2d 701 (N.Y. Fam. Ct. 1994). The court took judicial notice of the hazards to health caused by cigarette smoke, both actively and passively. The judge stated that "we are at a point in time when, in the opinion of this judge, a parent or guardian could be prosecuted successfully for neglecting his or her child as a result of subjecting the infant to an atmosphere contaminated with health-destructive tobacco smoke."

The court granted physical custody to the nonsmoking father. Earlier this year, an appeals court delayed the transfer of physical custody as long as the mother does not expose the child to ETS. (640 N.Y.S.2d 330 (App. Div. 1996).)

In prisons. At least one inmate has successfully argued that exposure to ETS in prison may constitute cruel and unusual punishment. In Helling v. McKinney (113 S. Ct. 2475 (1993)), a convicted murderer housed in a cell with a heavy smoker brought a pro se civil rights action against prison officials alleging that these conditions violated the Eighth Amendment. A lower court's decision to grant a directed verdict to prison officials was partially reversed by the Ninth Circuit Court of Appeals.

Prison officials appealed to the U.S. Supreme Court, which held, 7-2, that "we cannot rule at this juncture that it will be impossible for McKinney, on remand, to prove an Eighth Amendment violation based on exposure to ETS. "

The Court also rejected prison officials' central thesis that "only deliberate indifference to current serious health problems of inmates is actionable under the Eighth Amendment." The Court affirmed "the holding of the Court of Appeals that McKinney states a cause of action under the Eighth Amendment by alleging that petitioners have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health."

Edward L. Sweda Jr. practices law in Dorchester, Massachusetts. Mark Gottlieb is an attorney for the Boston-based Tobacco Products Liability Project.

Notes

(1) Florida, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Texas, Washington, and West Virginia have filed suit. Officials in Connecticut and New Jersey have announced their intention to do so.

(2) R.J. Reynolds Tobacco Co. v. Engle, 1996 Fla. App. LEXIS 561 (Flat Dist. Ct. App. 1996).

(3) 60 Fed. Reg. 41,314 (Aug. 11, 1995).

(4) 11.2 Tobacco Prods. Litig. Rep. 3.147 (1996) (settlement agreement between Castano plaintitffs and Brooke Group Ltd. and Liggett Group, Inc.); 11.2 Tobacco Litig. Rep. 3.160 (1996) (settlement agreement between attorneys general and Brooke Group Ltd. and Liggett Group, Inc.).

(5) See, generally Richard A. Daynard & Graham E. Kelder Jr., The Tobacco Industry Under Fire, TRIAL, Nov. 1995, at 20.

(6) James L. Pirke et al., Exposure of the U.S. Population to Environmental Tobacco Smoke: The Third National Health and Nutrition Examination Survey, 1988-1991, 275 JAMA 1233, 1236(1996).

(7) Id. at 1237.

(8) U.S. ENVIRONMENTAL PROTECTION AGENCY, PUB. NO. EPA/600/6-90/006F, RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING: LUNG CANCER AND OTHER DISORDERS (1992).

(9) See, e.g., S. Katherine Hammond et al., Occupational Exposure to Environmental Tobacco Smoke, 274 JAMA 956 (1995); Stanton A. Glantz & William W. Parmley, Passive Smoke and Heart Disease: Mechanisms and Risk, 273 JAMA 1047 (1995).

(10) Shimp v. New Jersey Bell Tel. Co., 368 A.2d 408 (N.J. Super. Ct. Ch. Div. 1976).

(11) Id. at 415.

(12) 9.6 Tobacco Prods. Litig. Rep. 2.161 (1994) (class certification), aff'd, 1996 Fla. App. LEXIS 49 (3d Cir. 1995), cert. denied, 654 So.2d 919 (Flat 1996).

(13) See generally Deborah E. Barnes et al., Environmental Tobacco Smoke: The Brown and Williamson Documents, 274 JAMA 248 (1995).

(14) No. 90-4-53 (Miss., Jones County Cir. Ct. filed May 13, 1994).

(15) No. 18D01-9305-CT-06 (Ind., Delaware County Super. Ct. filed May 28, 1993).

(16) In re Wiley, No. A9-365951 (U.S. Dep't of Labor, Office of Workers' Compensation Programs, Dec. 8, 1995).

(17) 42 U.S.C. [subsections]512101-12213 (Supp. IV 1992).

(18) Id. [subsections]12111(5).

(19) Id. [subsections]2112(b)(5)(a).

(20) Id. [subsections]12102(2). (21) 29 C.F.R. [subsections]1630.2(i) (1995).

(22) 42 U.S.C. [subsections]12111(10).

(23) E.g., Hendler v. Intelecom U.S., Inc., No. CV 952490 U.S.D.C. (E.D.N.Y. filed June 19, 1995); Bloom v. Saatchi & Saatchi N. Am. Inc., No. 95 CIV 5409 U.S.D.C. (E.D.N.Y filed July 20, 1995).

(24) 51 F.3d 353 (2d Cir. 1995).

(25) Id. at 357.

(26) E.g., Ubhi v. State Compensation Ins. Fund, No. SFO-0341691 (Cal. Workers' Compensation Appeals Bd. 1990).

(27) E.g., Imamura v. City and County of Honolulu Council, No.29208149 (Haw. Dep't of Labor & Indus. Relations, Disability Compensation Div. 1993).

(28) E.g., Lapham v Commonwealth Unemployment Compensation Bd. of Review, 519 A.2d 1101 (Pa. Commw. Ct. 1986), appeal denied, 529 A.2d 1084 (Pa. 1987).

(29) 45 U.S.C. [subsections]51 (1982).

(30) Thaxton v. Norfolk S. Ry. Co., No. 96VS0109725 (Ga., Fulton County Super. Ct. filed Feb. 12, 1996).

(31) Dugan v. Cumberland Farms, Inc., No. 9502370 (Mass., Norfolk County Super. Ct. filed Nov. 7, 1995).

(32) 59 Fed. Reg. 47,570 (1994) (to be codified at 29 C.F.R. pts. 1910, 1915, 1926, and 1928) (proposed Sept. 16, 1994).

Mark Gottlieb is an attorney for the Tobacco Products Liability Project (TPLP) in Boston and manages the ADA Smokefree Legal Research Project. Richard A. Daynard is a law professor at Northeastern University and chairman of TPLP.