Privacy Issues in the Workplace

Under Government Code section 7597, smoking is not allowed inside or in an outdoor area within 20 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. 607 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 U.S.C. section 794. Courts have held that someone with such a condition is physically handicapped within the protection of the FEHA. 608 As a result, employers are now under a duty to reasonably accommodate the needs of those who are sensitive to cigarette smoke. 609 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 as firefighters and policemen, are justifiably expected to maintain high standards of physical fitness due to the unique rigors of this kind of work. Moreover, under Labor Code section 3212.1, active firefighters who develop cancer (including lung cancer) are presumed to have contracted this disease out of and in the course of their employment. Consequently, fire departments may find their exposure to disability and workers compensation claims significantly increased for firefighters who do smoke. While this is still an emerging area of law, it is becoming ever more common for agencies to hire only non-smokers as firefighters, and to prohibit their smoking on and off-duty. The Oklahoma City Fire Department implemented such a policy. The policy was attacked by an employee who had been fired after being caught smoking off-duty as unconstitutionally infringing his privacy, liberty and due process rights. The court upheld the policy and the City’s right to enforce it. 610 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. 611 The ADA, and the California FEHA 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. 612 A non-

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