Market Trends

NY Health Law Expands Smoke-free Workplace to Company Vehicles

December 4, 2003

by Mike Antich

Health concerns about exposure to secondhandsmoke have caused many states to enact cleanindoor air laws that restrict or prohibit smokingin the workplace. Currently, 24 states have such restrictions.In addition, many cities and counties haveenacted similar ordinances that restrict or prohibitsmoking in the workplace. The question is what constitutesa “workplace.”The state of New York, which implemented itsClean Air Indoor Act on July 24, 2003, has extendedthe workplace smoking prohibition to include allcompany vehicles. The newly enacted public healthlaw covers not only company vehicles domiciled inNew York, but also those vehicles registered in otherstates being driven in New York. The law prohibitsemployees driving company vehicles from smokingany tobacco product that produces smoke, such as acigarette, cigar, or pipe, even if the employee is drivingalone. There are no exemptions to the law if an airpurifier or ventilation system is used. It is important tonote, however, that smoking in a company vehicle isnot a criminal offense in New York. It is a publichealth law violation, and as such a police officer cannotissue a citation. The law’s enforcement agency iscounty office of the New York Department of Health.Usually, the person reporting a violation is a co-workerof an employee who refuses to quit smoking in their presence.A company is not fined for the first complaint. A statehealth department official will contact company representativesto inform them that a complaint has been received.The official will ask if the employer has a copy of the lawand if its provisions are fully understood. The employer isput on notice that additional complaints will lead to an investigationand possible fines, which can be up to $2,000per violation. (See for the full textof the public health law.)It is important to note that the New York law exemptscompany liability during personal use of fleet vehicles.Since the law does not apply to private automobiles, anofficial of the New York Tobacco Enforcement Programsaid a company vehicle used for non-business purposesduring non-business hours is considered a private vehicle.This exemption also applies to company vehicles used byemployees during vacation time or days off from work.Liability for Exposure to Secondhand SmokeThe EPA reports that “the concentration of breathable particles(from secondhand smoke) in a closed motor vehicle ismore than 133 times higher than the current average annualEPA standard.” Secondhand smoke has been classified as aGroup A carcinogen, one that is known to cause cancer in humans.Consequently, employers run a liability risk if employeesare exposed to secondhand smoke at their workplace.Employees, particularly those with chronic respiratory illnessessuch as asthma, can sue for protection against tobaccosmoke under the Americans with Disabilities Act. Other legalprecedents allow employees disabled by workplace exposureto tobacco smoke to receive disability benefits, as was the casein Imamura v. City and County of Honolulu in 1993. In an earlier1983 case, the U.S. Court of Appeals ruled that a federalworker who is hypersensitive to tobacco smoke is “environmentallydisabled” and therefore eligible for disability benefits.(Parodi v. Merit System Protection Board U.S.C.A.)Besides liability exposure, the residual aroma of tobaccosmoke in a company vehicle negatively impacts its resalevalue and can result in unnecessary wear and tear expensescaused by cigarette burns to the upholstery or tobacco stainsto the roof liner and carpeting.Many fleets have implemented policies prohibiting driversfrom smoking in company vehicles. However, it is a balancingact since many states have laws that prohibit employers from discriminatingagainst smokers. When drafting a fleet no-smokingpolicy, you should first consider any state statutory restrictions orlocal ordinances protecting the rights not only of non-smokersbut also those of smokers. Also, employers with unionized driversmay have to negotiate smoking policies under the terms oftheir collective bargaining agreements. As with all fleet policy, ano-smoking rule must be implemented consistently for all employees,including managers and senior executives.Let me know what you think.

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