As the seriously debilitating effects of environmental tobacco smoke (ETS) have become known, employers and employees, as well as individuals generally, have recognized that the rights of persons affected by ETS are violated in certain cases when they are subjected to ETS either in the workplace or in public places and that there may be recourse for the victims of ETS. This is an area of law which is evolving as new laws are enacted concerning smoke-free environments, old laws are amended, and courts interpret existing laws. As a result, the rights of persons afflicted by ETS are expanding, and the potential liability of employers and owners of businesses who permit smoking is growing.
In this section of the SFELP web site, we have included information on major areas of law dealing with ETS, including citations to relevant cases. Additional materials will be added to this site on a regular basis. Also, go to the Links section of this site for direct links to various legal resources. The information provided herein is written for a wide range of audiences, including employers, the general public and the legal profession. These materials and links to other sources are provided for informational purposes only and are not intended to be and should not be construed as legal advice.
Michigan Governor Jennifer Granholm on December 18, 2009 signed into law a ban on indoor smoking in almost all workplaces and public places. The Legislature passed an amended House Bill 4377 on December 10th after years of stalemates over exceptions in the law. The measure allows indoor smoking only in three Detroit casinos on the gaming floors, cigar bars, specialty tobacco shops, home offices and motor vehicles, including commercial trucks. The smoke-free law, which takes effect May 1, 2010, makes Michigan the 38th state with such a law. To access a copy of the new law in pdf format click here. For additional information about the law, what it covers, and how it will be implemented, go to the state of Michigan site by clicking above.
AMERICANS WITH DISABILITIES ACT (ADA)
The federal Americans with Disabilities Act (ADA) took effect in 1992 and is intended to provide a comprehensive national mandate to eliminate discrimination against people with disabilities. The ADA prohibits discrimination against individuals with disabilities by employers with 15 or more employees, state and local governments, and in places of public accommodation. Persons who are substantially limited in a major life activity as a result of exposure to ETS may be covered by the ADA, and the ADA may provide these individuals with certain remedies or protections.
The Americans with Disabilities Act: Effective Legal Protection Against Secondhand Smoke Exposure
In April, 2004, the Tobacco Control Legal Consortium, of which the Smoke-Free Environments Law Project (SFELP) is a founding member, published a "law synopsis" of the above title which discusses the use of the Americans with Disabilities Act (ADA) as a potential legal remedy for persons exposed to and severely effected by exposure to secondhand smoke. The article was written by SFELP Consulting Attorney Clifford Douglas and can be accessed, in pdf format, by clicking here.
Title I of the ADA and ETS in the workplace:
SFELP has prepared a brief analysis of Title I of the ADA which addresses the ADA's prohibition against discrimination against disabled persons in the workplace, particularly as this applies to persons who have breathing or related problems which are severely exacerbated by secondhand smoke in the workplace. This analysis includes U.S. Supreme Court and related cases from 2000 and 2001. To access this analysis, which was prepared in July, 2001, click here.
Title II of the ADA and ETS in State and Local Facilities:
Full Panel of 6th Circuit Court of Appeals Rules Title II of ADA Can Be Used to Sue States and Localities for Discriminatory Conduct: Decision Affects Secondhand Smoke Cases in Michigan and 3 Other States -- Other Circuit Courts have Ruled Differently
On January 10, 2002, the 6th U.S. Circuit Court of Appeals, sitting en banc, issued an opinion , in Popovich v. Cuyahoga County which overturned a September 18, 2000 opinion of a 3-judge panel of the same U. S. Court of Appeals. The January 10, 2002 opinion held that Congress had validly abrogated states' Eleventh Amendment immunity from lawsuits by citizens when it enacted Title II of the Americans with Disabilities Act (ADA). The ADA allows individuals to sue states and localities for discriminatory conduct covered by the ADA. Earlier, in its September, 2000 decision, the 6th Circuit Court, had said that Congress exceeded its authority in Title II of the ADA when it abrogated States' sovereign immunity under the 11th Amendment to the Constitution; the 11th Amendment protects states from being sued in most instances, and the 6th Circuit said that Congress lacked the basis for overriding this immunity when it enacted Title II of the ADA. However, in its January, 2002 opinion, relying upon the U.S. Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 issued on February 21, 2001, the 6th Circuit Court of Appeals reversed the 2000 decision, saying that citizens can bring lawsuits against states under the ADA, based on Section 5 and the Due Process clause of Section 1 of the 14th Amendment. This decision means that in the 4 states covered by the 6th Circuit (Michigan, Ohio, Kentucky and Tennessee), Title II of the ADA is available to be used to sue states or local units of government for discrimination covered by the ADA. Since the ADA can be used to protect persons from discrimination in the workplace and in public accommodations, including persons who are severely harmed by contact with secondhand smoke, the ADA provides a legal remedy for protecting individuals from secondhand smoke. [The ADA is also available as a remedy against private employers and all non-governmental entities, under Titles I and III of the ADA.] (U.S. Appeals Courts in the 2nd, 5th, 9th, 10th and 11th Circuits have also said Title II can be used against the States; however, U.S. Appeals Courts in the 7th and 8th Circuits have ruled that states are protected from such lawsuits by the sovereign immunity clause of the 11th Amendment.) For the full September 18, 2000 6th Circuit decision, click here. For the full January 10, 2002 decision of the full 6th Circuit, overruling the earlier decision, click here.
Title III of the ADA and ETS in public accommodations:
SFELP has prepared a brief analysis of Title III of the ADA which addresses the ADA's prohibition against discrimination against disabled persons in places of public accommodation, particularly as this applies to persons who have breathing or related problems which are severely exacerbated by secondhand smoke in public accommodations or commercial areas. Title III covers persons seeking to receive services or participate in programs or activities provided by a public accommodation or commercial facility, such as public offices, retail facilities, restaurants and bars, museums, arenas, etc. This analysis includes U.S. Supreme Court and related cases from 2000 and 2001. To access this analysis, which was prepared in July, 2001, click here.
Rights of Employees Who Have Encountered Retaliation by Employers after Requesting Accommodation Under the ADA, Including in Cases Involving Secondhand Smoke
SFELP has prepared an analysis of the federal, Michigan and common law claims that may be available to an employee who has suffered various forms of retaliation in the workplace after pursuing his/her rights under the Americans with Disabilities Act (ADA), including in cases involving complaints about secondhand smoke in the workplace. For information, click here. click here.
What does the ADA have to do with Second-Hand Smoke?
This is a link to the Tobacco Control Resource Center's site in Boston and provides information on the ways in which the American's with Disabilities Act can be utilized by persons who are seriously affected by second-hand smoke. click here.
Department of Justice ADA Home Page:
This link to the DoJ ADA site provides a wide variety of information on the ADA, including: recent ADA news from DoJ; ADA enforcement status reports; ADA settlements and consent agreements; ADA technical assistance programs; links to certification of state and local buildings codes; ADA regulations and technical assistance materials and manuals; information on the ADA mediation program; and related materials.click here.
EEOC analysis of 1998-99 U.S. Supreme Court decisions concerning "disability" under the ADA
This link to the U.S. Equal Employment Opportunity Commission site provides the EEOC's July 26, 1999 "Instructions for Field Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing 'Disability'and 'Qualified.'" These instructions are to assist EEOC Field Offices in gathering and analyzing evidence when assessing whether a person has a "disability" and provides guidance on issues that the EEOC Field Offices should examine in making this determination, including whether a person is substantially limited in a major life activity when they are using a mitigating measure, such as medication. click here.
Analyses of the Rights of Individuals to Enforce Federal Rights - Including the Americans with Disabilities Act - Against States & State Officials
The National Senior Citizens Law Center has produced a series of analyses recently dealing directly with the U.S. Supreme Court decision covering the Americans with Disabilities Act (ADA) -- the Garrett case -- and related cases, including the Sandoval case. These cases particularly concern the rights of individuals to use the ADA and related federal laws to bring lawsuits against state governments and state officials. These cases are relevant because the ADA can be used to enforce the rights of persons who have severe breathing problems that are aggravated by secondhand smoke; the ADA is available to be used in workplaces and public accommodations. On May 9th, 2001 the Federal District Court of Northern Illinois handed down a decision in Access Living of Metropolitan Chicago v. Chicago Transit Authority in which the court upheld a Title II ADA claim against a unit of local government; for a brief analysis of this case, click here. For the full 17 page decision, in pdf, click here. For an analysis of the Garrett case, click here. For an analysis titled "Life After Garrett," click here. For an analysis of "Enforcing Federal Rights Against States & State Officials," click here.
U.S. Justice Department Argues Congress Validly Waived State's Immunity from Lawsuits Under Title II of the ADA
Since the University of Alabama v. Garrett decision earlier this year, in which the Supreme Court ruled that Congress did not have the authority to waive states'immunity to lawsuits under Title I of the Americans with Disabilities Act (ADA), there has been a question of whether Congress validly waived states'rights to be sued under Title II of the ADA. The Supreme Court had noted in Garrett that it was not addressing the Title II question in that opinion. On April 13th, the U.S. Justice Department, in the case of Garcia v. State University of New York Health Sciences Center at Brooklyn, which is before the U.S. 2nd Circuit Court of Appeals, filed a brief in which it argued that Congress had established a legislative record that supported Congress'decision to abrogate states'11th Amendment immunity from lawsuit under Title II of the ADA. Having the current U.S. Justice Department arguing this position is significant, particularly because it runs counter to the states'rights position that a narrow majority on the U.S. Supreme Court has been setting forth in a variety of decisions, including in Garrett. This is important for advocates of smoke-free environments because the ADA is one of the few federal laws that can be used to protect the rights of persons with breathing disabilities which are exacerbated by secondhand smoke. Title II ADA claims would deal specifically with the actions of state and local governments. For the complete, 70+ page brief in pdf format, click here.
For additional information on the ADA, including links to the full law: Go to the Links section of the SFELP web site by clicking here.
THE FEDERAL FAIR HOUSING ACT AND THE PROTECTION OF PERSONS WHO ARE DISABLED BY SECONDHAND SMOKE
Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings
In April, 2004, the Tobacco Control Legal Consortium, of which the Smoke-Free Environments Law Project (SFELP) is a founding member, published a "law synopsis" of the above title which discusses legal remedies available to tenants and landlords concerned about secondhand smoke infiltration. The article was written by SFELP Consulting Attorney Susan Schoenmarklin and can be accessed, in pdf format, by clicking here.
The Federal Fair Housing Act, HUD Opinions/Letters, & Secondhand Smoke
The federal Fair Housing Act (FHA) prohibits housing discrimination based on race, color, religion, sex, family status, national origin, or disability. The FHA, among other things, prohibits discrimination against people with disabilities, including those with severe breathing problems which are exacerbated by secondhand smoke. The FHA prohibits such discrimination by owners and operators of most housing, including most apartments and Section 8 and other HUD-assisted housing. It is clear from the language of the FHA, its interpretation by HUD General Counsel, and court decisions, that the FHA is available to people with breathing disabilities to seek reasonable accommodations from owners and operators of most housing in the United States in order to address the serious health hazards posed by secondhand smoke which infiltrates their housing. A detailed analysis of this issue by the Office of the General Counsel of the U.S. Department of Housing and Urban Development (HUD) was prepared in 1992 and is still in effect; a copy may be accessed from the HUD site by clicking here. For a link to HUD's online complaint form which can be filed directly, click here. For a link to download the HUD complaint form, in pdf format, so that it can be sent to a HUD office, click here. To access an analysis by SFELP of the FHA and how it can be used to protect persons who have breathing disabilities which are caused or exacerbated by secondhand smoke in their housing situations, click here.
HUD Legal Counsel Opinion: Landlords Are Free To Make Apartments Totally Smoke-Free
At the request of the Smoke-Free Environments Law Project, the Chief Counsel of the Housing & Urban Development (HUD) field office in Detroit issued an opinion on July 18, 2003 in which she stated that: "Currently, there is no HUD policy, by statute, regulation, handbook or otherwise that restricts landlords from adopting a prohibition of smoking in common areas or in individual units." The opinion goes on to state that there is nothing in federal law, including the federal Fair Housing Act (see SFELP analysis of the FHA above), or in Michigan law (see Michigan AG Opinion below) which prevents a landlord from making some or all of his/her apartment units smoke-free. The opinion states: "Similar to Michigan law, federal law does not prohibit the separation of smoking and non-smoking tenants in privately owned apartment complexes and in fact, does not prohibit a private owner of an apartment complex from refusing to rent to smokers." The only caveats to this policy which the opinion lists are: 1) if the apartment owner wishes to make the policy a condition of the lease, HUD approval is necessary to the extent that the owner is bound to utilize HUD's model lease; and 2) "if owners seek to make their complexes smoke-free they must take caution to grandfather in those smoking residents currently residing at the complex." To access this opinion, click here for page 1, and click here for page 2.
Michigan Attorney General's legal opinion: Privately-owned apartment complexes can be smoke-free
This is a link to a 1992 Legal Opinion of the Michigan Attorney General which examined the issue of whether privately-owned apartment complexes could be either entirely smoke-free or have certain buildings in a complex be smoke-free. The Attorney General concluded as follows: "It is my opinion, therefore, that neither state nor federal law prohibits a privately-owned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex." There has been nothing enacted in Michigan or federal law since this opinion was written which would overrule this opinion. To access the opinion, click here here
For more information on your rights to a smoke-free apartment: go to the MI Smoke-Free Apartment web site by clicking here and to the ETS & Apartments and Condominiums section of the SFELP web site by clicking here.
CLEAN INDOOR AIR ACT (MICHIGAN)
The Michigan Clean Indoor Air Act prohibits smoking in "public places," except in designated areas. While any facility may adopt a total ban on smoking, the Clean Indoor Act does not require this; instead, those "public places" covered by the law may designate smoking areas, and these areas do not have to be physically separated and ventilated from other non-smoking areas. Further, only certain types of facilities are covered by the law. Thus, the law provides only limited protection from ETS and limited remedies. To link to the Michigan Clean Indoor Air Act, which is Public Act 198 of 1986, as amended, (MCL Section 333.12601 et seq) click here. For more detailed information developed by SFELP, click here.
Michigan Executive Order 1992-3 makes almost all state government buildings smoke-free indoors, but it also prohibits smoking "a reasonable distance from all entrances to state government facilities," leaving it to individual Department or Agency heads to define what this means in a given facility. We believe that the term "reasonable distance" is not without common sense meaning, and having to walk through a wall of smoke to enter a state building would mean that smokers were not staying a reasonable distance from the entrance. Complaints can be filed with the applicable state agency by anyone -- state employees and other citizens -- who believes she or he has a valid complaint. To access Executive Order 1992-3, click here.
For additional information on the Clean Indoor Air Act, including links to the full law, go to the Links section of this site.
SMOKING IN RESTAURANTS & BARS IN MICHIGAN
The Michigan Public Health Code at 333.12905 (Public Act 242 of 1993) provides that smoking in food service establishments, which include restaurants and bars, as defined in the Michigan Food Law of 2000 at section 289.1107, is only somewhat restricted. The Michigan law states that a food service establishment may voluntarily adopt a total ban on smoking. However, the law provides that, if a food service establishment with a seating capacity of fewer than 50 wishes to allow smoking, it has to designate at least 25% of its seating for nonsmokers. If a food service establishment with a seating capacity of more than 50 wishes to allow smoking, it has to designate at least 50% of its seating for nonsmokers. The law does not require that these designated smoking areas be totally physically separated from the smoking seating; the law says that the seating for nonsmokers shall be clearly identified, shall place the seats for nonsmokers in close proximity to each other, and locate the seats for nonsmokers so as not to discriminate against nonsmokers. Persons who have complaints about the manner in which food service establishments are carrying out this law may send written complaints to the local health department, which has 5 days after receipt of the complaint to investigate the complaint to determine compliance. To access section 333.12905 of the Michigan Public Health Code, click here.
Analysis of Michigan Appeals Court Decision on the Authority of Localities to Ban Smoking in Restaurants: The Marquette Case
On March 13, 2001, the Michigan Appeals Court issued a ruling in which it stated that localities were preempted by state law from totally banning smoking in food service establishments, which include restaurants and bars, but which left localities with the power to regulate certain aspects of smoking in restaurants. This decision was appealed by the City of Marquette to the Michigan Supreme Court, but on May 6, 2002 the Court declined to hear arguments in the case. Therefore, the Appeals Court decision is the law in the state of Michigan. For an analysis of the decision by the Smoke-Free Environments Law Project, click here. For the majority opinion in the case, click here. For the concurring and dissenting opinion, click here.
MICHIGAN TOBACCO-FREE SCHOOLS ACT
The Michigan Tobacco-Free Schools Act, referred to as Public Act 140 of 1993, prohibits the use of tobacco in public school buildings at all times; this includes smoking tobacco products, chewing tobacco, carrying lighted tobacco products, or placing a tobacco product in a person's mouth. The law also prohibits the use of tobacco on outdoor school property; however, the law states that the prohibition on the use of tobacco does not apply to outdoor school property, including open-air stadiums, during either of the following time periods: Saturdays, Sundays and other days on which there are no regularly scheduled school hours; and after 6:00 p.m. on days during which there are regularly sceduled school hours. Violators of the law are guilty of a misdemeanor, which is punishable by a fine of not more than $50. The enforcement agency for this law is the Tobacco Section of the Michigan Department of Community Health, at 517 335-8376. To access a copy of this law, click here.
WORKER'S COMPENSATION LAWS (MICHIGAN)
The Michigan Worker's Compensation Law (MCL Section 418.101) enables individuals to seek monetary benefits for bodily injury caused or aggravated by employment-related accidents or diseases. While there have been only a limited number of cases decided involving ETS, Michigan has recognized ETS as a cause of certain occupational diseases, especially those related to lung and respiratory problems. Further, upon notification of the employer by a worker that s/he is suffering from an injury or physical condition due to ETS in the workplace setting, the employer has an obligation to make reasonable accommodations to address the problem. For more detailed information developed by SFELP, click here.
For additional information on Michigan Worker's Compensation, including links to Michigan statutes and opinions, go to the state of Michigan site by clicking here.
FEDERAL MEDICAID AND MEDICARE LAWS DO NOT REQUIRE LOCALITIES OR STATES TO EXEMPT NURSING HOME RESIDENTS FROM SMOKE-FREE LAWS
In 2006, a lobbying organization for Indiana's for-profit nursing homes pressured Delaware County Commissioners to exempt nursing home residents who are currently smokers from having to adhere to the county's smoke-free law. They claimed that federal and state Medicaid and Medicare laws require localities to exempt current residents who are smokers from the smoke-free law. The Smoke-Free Environments Law Project (SFELP) was contacted by Indiana health groups about these claims and asked if we would prepare a response to the nursing home lobbyist's assertions. We researched the issue and concluded that the nursing home lobbyists were incorrect. In fact, the answer is demonstrably clear that federal and state Medicaid and Medicare laws do not require such an exemption. To access a copy of a 3-page memorandum prepared by SFELP's Director, Jim Bergman, addressing these issues, click here. For a September, 2006 news report about the Delaware County situation, click here. Periodically, these issues arise around the country, and this memorandum should assist in addressing the matters. For additional information on Smoking Policies in Facilities Serving Older Persons click here.
FEDERAL OSHA REGULATIONS ON INDOOR AIR QUALITY
The federal Occupational Safety & Health Administration (OSHA) has in the past decade devoted increasing attention to the issue of indoor air quality, including secondhand smoke. On April 5, 1994, OSHA issued proposed Indoor Air Quality regulations which dealt with secondhand smoke in the workplace as well as other issues; OSHA received numerous comments on these regulations, but has not subsequently issued final regulations. The OSHA web site has links to a number of materials related to this issue, including to the proposed regulations; these materials provide valuable information for persons working on state OSHA issues concerning secondhand smoke in the workplace. click here to go to the OSHA site.
TOBACCO: A LEGAL & POLICY ISSUE
This 1996 article titled Tobacco: A Legal & Policy Issue of the Elderly by Saidy Barinaga-Burch and James A. Bergman of The Center for Social Gerontology discusses various legal issues and theories that concern tobacco and older persons. Many of these issues also affect younger persons, including ETS and the American's with Disabilities Act, Worker's Compensation issues, Unemployment Compensation, common law remedies, and class action lawsuits. The article provides citations to numerous related cases. click here.
SEE ALSO THE SECTION OF THIS SITE TITLED: ETS & APARTMENTS AND CONDOMINIUMS.
Environments Law Project
The Center for Social Gerontology
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