Privacy Issues in the Community College Workplace

In enacting Labor Code section 6404.5, the California Legislature intended to prohibit the smoking of tobacco products in all enclosed places of employment. Only certain facilities are excluded from this restriction. 560 But places which are not covered by section 6404.5 are subject to local regulation. 561 Under Government Code section 19994.30 et seq , smoking is not allowed inside or in an outdoor area within five feet of a main entrance or exit to any state-owned, occupied or state-leased and occupied building or in passenger vehicles owned by the state. With regard to public buildings, the California Attorney General has opined that counties have the right to enact ordinances banning all smoking in county buildings, and may enforce them against members of the public within their incorporated territories. 562 Beyond state laws and local ordinances, federal court decisions have held that an employee who is unusually sensitive to tobacco smoke is “handicapped” within the contemplation of section 504 of the Rehabilitation Act of 1973, Title 29 United States Code section 794. Courts have held that someone with such a condition is physically handicapped within the protection of the FEHA. 563 As a result, employers are now under a duty to reasonably accommodate the needs of those who are sensitive to cigarette smoke. 564 b. Employer’s Right to Prohibit Employees from Smoking Altogether Whether employers can prohibit employees from smoking both on and off-duty is generally related to the issue of an employer’s right to regulate off-duty conduct. In most situations, it is unlikely that employers may prohibit smoking away from the work site. However, certain professions, such police officers, are justifiably expected to maintain high standards of physical fitness due to the unique rigors of this kind of work. According to a decision by the California Public Employment Relations Board, a school district was not required to negotiate prior to implementing a policy that banned smoking in all District buildings and vehicles, and at District-sponsored activities, whether such activities occurred on or off District premises. The District had been motivated by several factors, including Education Code section 48901 which requires discouragement of high school students from smoking. 565 The Americans with Disabilities Act, and the California Fair Employment and Housing Act may prohibit an employer from refusing to hire smokers who are qualified to perform the essential functions of the job for which they apply. Although smoking, unlike rehabilitated illegal drug addiction, is not a protected disability enumerated in the ADA, it may nevertheless be covered if the employer regards it as a substantially limiting impairment or if the employer’s attitude renders it a substantially limiting impairment. 566 A non-smoking regulation could be subject to a credible legal challenge under the Americans with Disabilities Act, Fair Employment and Housing Act, and under California’s constitutional right to privacy.

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 177