The air war over workplace smoking heats up amid a push for tough - and consistent - regulations
NEW YORK — It's easy to spot smokers during the workday. They stand outside in little groups during breaks, exhaling fumes into the air. The scene may take place outside a building lobby or on a loading dock.
But sometimes smokers refuse to step outside. Some business owners - perhaps tobacco users themselves - don't feel inclined to provide a smoke-free workplace. Some states support "smokers' rights."
As smoking-related petitions are signed and lawsuits filed around the country, questions are being raised about what role, if any, government should play when it comes to smoking in the workplace.
For seven years, the Occupational Safety and Health Administration has been considering a standard for indoor air quality, an idea debated by business.
OSHA's website includes a lengthy discussion on the health effects of secondhand smoke. Early in May, an antismoking group, Action on Smoking and Health (ASH), brought a suit asking that OSHA ban workplace smoking nationwide.
"Secondhand tobacco smoke ... according to OSHA's own estimates, kills more American workers each year than all other toxic chemicals combined," says John Banzhaf, executive director of ASH.
Air-quality issues have become a serious concern for many companies and their employees.
To obtain a smoke-free workplace, some workers have resorted to lawsuits or threats of lawsuits. A 1996 Yankelovich survey done for an interior-design association found that air quality was office workers' second-biggest complaint, behind noise.
Today, many large companies have full-time industrial hygienists to help monitor indoor air quality.
"Clean-air issues can be extremely costly because of lack of productivity," says Brian Shelton, chairman of the Indoor Environmental Quality Committee of the American Industrial Hygiene Association in Washington. "Entire plants may have to shut down" because of air-quality issues.
Although no one keeps national statistics on how many workers complain about secondhand smoke in their work conditions, plenty of anecdotal evidence exists.
Americans for Non-Smokers Rights says it gets a few calls every day from people complaining about secondhand smoke at work.
Since 1995, New York has restricted smoking in offices, but not prohibited it. Smoking is allowed in private offices as long as no more than three people are in the office and it does not become a nuisance for other people.
The number of complaints has declined from 2,986 in the first year of the law to 591 last year. But fines have increased, and last year the city collected $157,395 from violators.
"The general trend indicates that the Smoke-free Air Act is indeed successful," says Greg Butler, a spokesman for New York's Department of Health.
When office tenants complain, they usually go to a building manager before taking the issue to the city. The initial response by NAI Lawrence Group, which manages large commercial smoke-free buildings in New York, is to talk to offenders.
"We appeal to their better nature, and 90 percent of them understand and join everyone else in the front of the building," says Anthony Russo, director of operations for the firm.
If the smokers don't move outside, Mr. Russo threatens to report them to the city. "After that, if they continued to smoke and we caught them, we would call the Department of Health and have them issue a summons."
Actually, the process is not quite so simple. If someone complains to the city, an inspector is sent to investigate, using an old-fashioned smoke detector - the nose. If he or she smells cigarette smoke, a warning letter is issued.
After 30 days, if a second complaint is made and the inspector once again smells smoke, the city issues a violation notice with the possibility of a fine ranging from $200 to $2,000.
First-time violators are more likely to get a $200 fine. Chronic violators can get a $2,000 fine. An administrative tribunal has discretion. "Everyone gets his day in court," says Mr. Butler.
But in other parts of the country, cooperation is more limited. For example, 93 employees of Guilford County, N.C., signed a petition asking for a smoke-free workplace.
"It was promptly not acted upon," says Stan Meyer of North Carolina GASP, a grass-roots organization. "The mentality is that if you want to get rid of secondhand smoke, you are nonpatriotic to North Carolina," he says.
When a building is declared "smoke free," state law requires that 20 percent of it be set aside for smoking. Even so, county attorney Jonathan Maxwell thinks smoking currently takes place in "far less" than 20 percent of any office building.
"If the county commissioners declared the building smoke-free, they would have to set aside [more space] for smoking," says Mr. Maxwell, who thinks most county workers who smoke go to a stairwell or outside. "If someone objects to someone else smoking, they can just ask them to take it outside. I've never heard of an argument. This is the South, we tend to get along."
In fact, some smokers believe that whether or not smoking is allowed in an office should be decided on a case-by-case basis. "It's really up to the business owner," says Tom Holmer of Lansing, Ill., a member of Smokers United, a grass-roots organization that he says receives no funding from the tobacco industry.
But, he adds, "you have to try to keep everyone from complaining."
Mr. Holmer, who does not believe there is any scientific proof that secondary smoke harms nonsmokers, believes the fuss over smoking in the workplace pits employee against employee. For example, some nonsmokers complain about the extra time smokers take each day to go outside to smoke.
"I know I'm more productive if I can sit and smoke at my desk," says Holmer, adding, "if you can accommodate both, you are probably better off."
Workers who desire a smoke-free atmosphere at a small business can sometimes be in for a rough time, says Bill Godshall, executive director of SmokeFree Pennsylvania, an advocacy group in Pittsburgh. "Where the owner and the boss is a smoker, you often hear: 'If you don't like my smoking, go find another job,' " says Mr. Godshall, who estimates that about one-third of workers who complain about smoking end up losing their jobs. "They may trump something up and fire you for insubordination."
Godshall says many employers fear going smoke-free because it may cause an employee revolt. To head this off, he suggests employers offer workers free smoking-cessation programs.
"That usually neutralizes the opposition, since the smokers feel like they are getting something out of it," he says. Unfortunately, he has found that only a small percentage of smokers actually sign up for the classes.
Godshall adds that nonsmoking workers who turn to labor unions for help are often unhappy as well.
"When we tried to get smoke-free schools, the teachers unions objected," he says, adding that he often gets complaints from workers in prisons and state mental-health institutions. One state-employed psychiatric worker has to light the cigarettes of patients at mental facilities since the state does not want them possessing matches.
"She actually has to sit there and watch them smoke," he says.
But employees do have options, says Mr. Banzhaf of ASH. They can file an anonymous OSHA complaint. "The advantage is you don't have to hire a lawyer," he says. "The disadvantage is that you have to include specific magic words in the complaint to get OSHA to investigate."
Banzhaf's group has printed those magic words on complaint forms, which people can obtain for free on ASH's website (www. ash.org).
In addition, someone who develops a medical condition as a result of a smoky work environment may be eligible for disability benefits or unemployment compensation if smoke makes working impossible. Banzhaf says lawsuits have also been filed under local battery laws. "When you are subjected to dangerous chemicals, this might be intentional enough," he says.
In some instances, he says, the suits have resulted in financial settlements. A waiter won $100,000 after a heart attack. A teacher won $30,000 after claiming she was injured by smoke seeping into her classroom from the teachers' lounge. When possible, Banzhaf says, workers are better off filing as a group to avoid retaliation.
(c) Copyright 2001. The Christian Science Monitor