NY Health Law Expands Smoke-free Workplace to Company Vehicles
Health concerns about exposure to secondhand
smoke have caused many states to enact clean
indoor air laws that restrict or prohibit smoking
in the workplace. Currently, 24 states have such restrictions.
In addition, many cities and counties have
enacted similar ordinances that restrict or prohibit
smoking in the workplace. The question is what constitutes
The state of New York, which implemented its
Clean Air Indoor Act on July 24, 2003, has extended
the workplace smoking prohibition to include all
company vehicles. The newly enacted public health
law covers not only company vehicles domiciled in
New York, but also those vehicles registered in other
states being driven in New York. The law prohibits
employees driving company vehicles from smoking
any tobacco product that produces smoke, such as a
cigarette, cigar, or pipe, even if the employee is driving
alone. There are no exemptions to the law if an air
purifier or ventilation system is used. It is important to
note, however, that smoking in a company vehicle is
not a criminal offense in New York. It is a public
health law violation, and as such a police officer cannot
issue a citation. The law’s enforcement agency is
county office of the New York Department of Health.
Usually, the person reporting a violation is a co-worker
of an employee who refuses to quit smoking in their presence.
A company is not fined for the first complaint. A state
health department official will contact company representatives
to inform them that a complaint has been received.
The official will ask if the employer has a copy of the law
and if its provisions are fully understood. The employer is
put on notice that additional complaints will lead to an investigation
and possible fines, which can be up to $2,000
per violation. (See www.health.state.ny.us for the full text
of the public health law.)
It is important to note that the New York law exempts
company liability during personal use of fleet vehicles.
Since the law does not apply to private automobiles, an
official of the New York Tobacco Enforcement Program
said a company vehicle used for non-business purposes
during non-business hours is considered a private vehicle.
This exemption also applies to company vehicles used by
employees during vacation time or days off from work.
Liability for Exposure to Secondhand Smoke
The EPA reports that “the concentration of breathable particles
(from secondhand smoke) in a closed motor vehicle is
more than 133 times higher than the current average annual
EPA standard.” Secondhand smoke has been classified as a
Group A carcinogen, one that is known to cause cancer in humans.
Consequently, employers run a liability risk if employees
are exposed to secondhand smoke at their workplace.
Employees, particularly those with chronic respiratory illnesses
such as asthma, can sue for protection against tobacco
smoke under the Americans with Disabilities Act. Other legal
precedents allow employees disabled by workplace exposure
to tobacco smoke to receive disability benefits, as was the case
in Imamura v. City and County of Honolulu in 1993. In an earlier
1983 case, the U.S. Court of Appeals ruled that a federal
worker who is hypersensitive to tobacco smoke is “environmentally
disabled” and therefore eligible for disability benefits.
(Parodi v. Merit System Protection Board U.S.C.A.)
Besides liability exposure, the residual aroma of tobacco
smoke in a company vehicle negatively impacts its resale
value and can result in unnecessary wear and tear expenses
caused by cigarette burns to the upholstery or tobacco stains
to the roof liner and carpeting.
Many fleets have implemented policies prohibiting drivers
from smoking in company vehicles. However, it is a balancing
act since many states have laws that prohibit employers from discriminating
against smokers. When drafting a fleet no-smoking
policy, you should first consider any state statutory restrictions or
local ordinances protecting the rights not only of non-smokers
but also those of smokers. Also, employers with unionized drivers
may have to negotiate smoking policies under the terms of
their collective bargaining agreements. As with all fleet policy, a
no-smoking rule must be implemented consistently for all employees,
including managers and senior executives.
Let me know what you think.