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 a “workplace.”
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.
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