SMOKING AND RESTAURANTS:

A GUIDE FOR POLICY-MAKERS

 

 

 

 

Michael Siegel, M.D., M.P.H.

 

UC Berkley/UCSF Preventative Medicine Residency Program

American Heart Association, California Affiliate

Alameda County Health Care Services Agency, Tobacco Control Program

 

 

September, 1992

CHAPTER 3

 

HEALTH EFFECTS OF ETS EXPOSURE IN RESTAURANTS

 

 

            Restaurant employee exposure to environmental tobacco smoke (ETS) appears to be 3-5 times higher than typical workplace exposure and 8-20 times higher than domestic exposure (chapter 2).  Given the significantly increased risk of heart disease and lung cancer attributable to domestic ETS exposure (chapter 1), one would expect to find increased rates of involuntary smoking-related disease and death in restaurant employees.  Is this the case?  Is involuntary smoking in restaurants actually causing a significant amount of disease and death in restaurant workers?

 

            To evaluate this question, the epidemiologic literature was reviewed.  Many studies have found a significantly elevated risk of lung cancer in food service workers.  The results are summarized in Table 6, and described below:

 

  1. Doebbert et al. studied the occupational mortality of California women from 1979 to 1981.  Among white women, waitresses had the highest mortality rates, with an overall 147% excess risk of death.  Heart disease mortality was 156% higher than expected, and lung cancer mortality was 268% higher.
  2. Anderson et al. found a 53% excess lung cancer risk in waiters in Norway.
  3. Menck and Henderson reported a 71% excess lung cancer risk in white males working in the food and drink industry.
  4. Dimich-Ward et al. studied bartenders and waiters in British Columbia.  They found an excess lung cancer risk of 33% for males and 65% for females.
  5. Lynge found an excess lung cancer risk of 132% in Danish waiters.
  6. Williams et al. studied occupational mortality using data from the Third National Cancer Survey.  For women, excess lung cancer risk was 67% for the food and drink retail industry, and 88% for food service workers.  The results were controlled for age, race, education, tobacco, and alcohol use.
  7. Zahm et al. conducted a case-control study using the Missouri Cancer Registry.  The excess risk of lung cancer among male food service personnel was 80%, controlled for active smoking.

 

TABLE 6: STUDIES OF LUNG CANCER RISK IN FOOD SERVICE WORKERS

 

 

STUDY

(ref. no.)

SUBJECTS

CONTROLLED?[1]

EXCESS LUNG CANCER RISK

FEMALES

1

California waitresses

No

268%

4

British Columbia

Bartenders/waiters

No

65%

6

US food service workers

Yes

88%

MALES

2

Norwegian waiters

No

53%

3

Los Angeles food and drink industry workers

No

71%

4

British Columbia

Bartenders/waiters

No

33%

5

Danish waiters

No

132%

7

Missouri food service workers

Yes

80%

 

There are several confounding variables that could explain an elevated lung cancer risk in food service workers.  These include active smoking, socio-economic status, stress, and social support.  Of these, active smoking is the most important.  There are four reasons to believe that smoking does not fully explain the increased risk of lung cancer in food service workers:

 

  1. Smoking rates among U.S. waiters are comparable to those for the general population.  The 1970 Health Interview Survey found a current smoking rate of 45% in waiters versus 43% in the male population.  Thus, confounding by active smoking is unlikely to explain the increased risk estimates for waiters, at least in the U.S. studies.  The smoking rate for waitresses (50%) was significantly higher than for the female population (31%), so active smoking is an important confounder for the results in women.
  2. Levin et al. designed a study specifically to determine the excess occupational lung cancer risk in U.S .waitresses that could be explained by active smoking.  They found that failure to control for active smoking could result in the detection of a 50% excess lung cancer risk.  Thus, although smoking is an important confounder, it is unlikely to explain all of the excess risk of lung cancer in U.S. waitresses.
  3. Using data from the National Health Interview survey, the risk estimates in the California Occupational Mortality study were adjusted for smoking, alcohol, and socio-economic status.  While the excess lung cancer risk for waitresses decreased considerably after adjustment, it remained significant at 48%.
  4. The two studies that did control for active smoking found an 80-90% excess risk of lung cancer in both waiters and waitresses.  This is consistent with the finding of a 71% excess lung cancer risk in Los Angeles waiters, which should not be confounded by smoking for the reason outlined above.  The Williams study also controlled for education, so much of the potential significant confounding was probably removed.

 

Although additional studies are needed to more accurately quantify the excess lung cancer risk, the preliminary evidence suggests that waiters and waitresses have about a 50-90% excess lung cancer risk, controlling for significant confounding variables.  While part of this excess risk could be due to cooking fumes, it is likely that most of the excess risk is attributable to ETS exposure.

 

It appears then, that waiters and waitresses have a 1 ½ to 2 times the risk of dying from lung cancer compared to the general population, due in part to restaurant ETS exposure.  This is quite plausible, given the extremely high exposure to ETS in restaurants and the known health risks of ETS at considerably lower levels of exposure.

CONCLUSION

 

  1. In California, waitresses have the highest mortality of any female occupational group.  They have almost 4 times the expected lung cancer mortality and 2 ½ times the expected heart disease mortality rate.

 

  1. The preliminary evidence suggests that waiters and waitresses have about a 50-90% increased risk of lung cancer that is most likely attributable to restaurant tobacco smoke exposure.  Thus, exposure to ETS at work makes restaurant workers 1 ½ to 2 times as likely to die from lung cancer as they would otherwise be.

 

  1. Although not yet studied, the morbidity and mortality of restaurant workers from heart disease attributable to restaurant ETS exposure is expected to be even more significant than for lung cancer.  (Heart disease causes ten times the number of deaths from lung cancer in involuntary smokers.)

 

CHAPTER 4

 

SMOKING IN RESTAURANTS: THE LEGAL SITUATION

 

 

Given the magnitude of environmental tobacco smoke’s health effects (Chapter 1), and the fact that restaurant employees have the highest workplace exposure (Chapter 2), is there a legal argument for regulating smoking in restaurants?  Does the restaurant employee have a right to a smoke-free work environment?

 

            This chapter will examine two questions:

 

1.      Are restaurant employers obligated to protect their employees from the health hazards of ETS?

 

2.      Are restaurant employers liable for damages to workers if they fail to protect them from ETS?

 

 

I. Are restaurant employers obligated to protect their employees from the health hazards of ETS?

 

A. COMMON LAW DUTY TO PROVIDE A SMOKE-FREE WORK ENVIRONMENT

 

            Under common law, employers are required to provide a work environment reasonably free of recognized hazards.  The employer must use reasonable care in providing his employees with a safe working environment, protecting them from avoidable hazards.  Based on evidence of the health effects of involuntary smoking, courts have ruled that this common law duty requires employers to provide nonsmoking employees with an environment free from tobacco smoke.  Through several court opinions, the definition of tobacco smoke as an avoidable occupational hazard, and the right of the nonsmoking worker to be protected from this hazard, have been accepted:

 

            Shimp v. New Jersey Bell Company: A secretary working for the telephone company who was allergic to cigarette smoke sought an injunction requiring a smoking ban.  The court ordered the employer to provide a safe working environment for the plaintiff by restricting smoking to a non-work area.  The decision was based on four major principles:

 

1.      “It is clearly the law in this State that an employee has a right to work in a safe environment.  An employer is under an affirmative duty to provide a work area that is free from unsafe conditions.”

2.      “There is no necessity to fill the air with tobacco smoke in order to carry on defendant’s business, so it cannot be regarded as an occupational hazard which plaintiff has voluntarily assumed in pursuing her career as a secretary.”

3.      “When an employer is under a common law duty to act, a court of equity may enforce an employee’s rights by ordering the employer to eliminate any preventable hazardous condition which the court finds to exist.”

4.      “There can be no doubt that the by-products of burning tobacco are toxic and dangerous to the health of smokers and nonsmokers generally and this plaintiff in particular.”

 

            Smith v. Western Electric Company.  The employee sought an injunction requiring the employer to provide him with smoke-free working conditions.  The Missouri Court of Appeals overturned a trial court’s dismissal of the plaintiff’s action.  The court concluded that “by failing to exercise its control and assume its responsibility to eliminate the hazardous conditions caused by tobacco smoke, defendant has breached and is breaching its duty to provide a reasonably safe workplace.”  The decision was based on three major principles:

 

1.      “It is well-settled in Missouri that an employer owes a duty to the employee to use all reasonable care to provide a reasonably safe workplace, and to protect the employee from avoidable perils.”

2.      “The allegations of the instant case, taken as true, show that the tobacco smoke of co-worker smoking in the work area is hazardous to the health of employees in general and plaintiff in particular.”

3.      “The allegations also show that defendant knows the tobacco smoke is harmful to plaintiff’s health and that defendant has the authority, ability, and reasonable means to control smoking in areas requiring a smoke-free environment.”

 

            Lee v. Department of Public Welfare: A social worker sued her employer, seeking an injunction to relieve her from exposure to tobacco smoke at work.  An attempt by the employer to dismiss the case was denied by the Massachusetts Superior Court: “An inherent in the work to be done.  Otherwise, the employer is required to take steps to prevent injury that are reasonable and appropriate under the circumstances…Accordingly, this court cannot say that the plaintiff’s claim fails to make out a legally cognizable basis for relief.”

 

            It is clear that based on tort common law, the nonsmoker does have a right to a work environment free from tobacco smoke.  Does this right extend to restaurant employees?  In the language of the precedent cases, the key issue is whether or not smoking in restaurants is: (1) “necessary to carry out business”, (2) an “avoidable peril”, or (3) “inherent in the work to be done”.  It is unlikely that any court would find that long-term exposure to a class A carcinogen is inherent in being a waiter, or is unavoidable.

 

            Thus, under the common law, restaurant employers are required to provide employees with a smoke-free work environment.  Since segregation of smokers and nonsmokers does not reduce ETS exposure (see Chapter 6), reasonable accommodation of employees may require a 100% smoke-free policy, unless a separately ventilated room is available for smoking, in which the employee is not asked to work.

 

B. FEDERAL AND STATE LAWS TO PROTECT HANDICAPPED EMPLOYEES

 

            The common law provides protection from ETS for nonsmoking employees in general.  Additionally, Federal and California state law provide protection for employees who are particularly sensitive to smoke.

 

            First, the National Rehabilitation Act of 1973 holds that employers must make “reasonable accommodation” for employees who are handicapped.  Two recent federal decisions have classified employees who are extremely sensitive to tobacco smoke as handicapped.  In Pletten v. U.S. Army, the U.S. Merit Systems Protection Board ruled that Leroy Pletten was handicapped because he suffered from asthma, and was especially sensitive to tobacco smoke.  The employer was required to make a reasonable accommodation, which in this case was a prohibition of smoking in Pletten’s Division.  In Vickers v. Veterans Administration, a U.S. District Court ruled that the plaintiff was handicapped because he “is unusually sensitive to tobacco smoke and that this hypersensitivity does in fact limit at least one of his major activities, that is, his capacity to work in an environment which is not completely smoke-free.”

 

            Second, the California Fair Housing and Employment Act requires reasonable accommodation for employees who are handicapped.  In County of Fresno v. Fair Employment and Housing Commission, a California Court of Appeals ruled that two employees who were sensitive to tobacco smoke due to underlying lung disease were handicapped under the Act, and thus entitled to reasonable measures to protect them from tobacco smoke exposure.  In this case, banning smoking in the employee’s work area would have been required to satisfy the provisions of the Act.

 

            Thus, under Federal and state law, restaurant employers are required to take reasonable measures to provide a smoke-free work environment for employees who are especially sensitive to tobacco smoke.  Again, this would probably require a 100% smoke-free policy, unless a separately ventilated smoking room were available, in which the employee was not asked to work.

 

II. Are restaurant employers liable for damages to their workers if they fail to protect them from ETS?

 

            There are three areas of liability for employers who fail to protect their employees from the hazards of ETS: workers’ compensation and disability, personal injury due to employee negligence under common law, and unemployment compensation.  Since the duty to provide a smoke-free work environment applies to restaurant employers, the three areas of liability apply as well.

 

 

 

A. WORKERS’ COMPENSATION AND DISABILITY

 

            The most compelling example of potential liability under workers’ compensation is the 1990 California case of Ubhi v. State Compensation Insurance Fund.  Ubhi, a nonsmoking waiter who suffered a heart attack he claimed was due to restaurant tobacco smoke exposure, received a settlement of $85,000 from the state Compensation Insurance Fund.

 

            There are numerous cases in which workers’ compensation and disability awards for injury caused by exposure to workplace ETS have been upheld at the claims appeal or judicial level, or in which the claims were uncontested:

 

1.      Kufahl v. Wisconsin Bell, Inc.: Wisconsin Bell paid Deborah Kufahl $23,400 in workers’ compensation for permanent disability due to eight years of exposure to secondhand smoke.  Kufahl suffered headaches, nausea, fatigue, and dizziness when exposed to ETS.

 

2.      Brooks v. TWA and Liberty Mutual Insurance:  An airline stewardess received workers’ compensation from TWA and Liberty Mutual for injury due to an allergic reaction to tobacco smoke.

 

3.      Bena v. Massachusetts Turnpike Authority:  An administrative judge awarded compensation to an ex-smoker for exacerbation of his chroninc obstructive lung disease by workplace ETS exposure.

 

4.      Johannesen v. New York City Dept. of Housing Preservation and Development:  Compensation was awarded to an employee who developed asthma from repeated workplace ETS exposure.

 

5.      Schober v. Mountain Bell Telephone:  A New Mexico Court of Appeals awarded partial permanent disability benefits for injury due to an allergic reaction to tobacco smoke at work.

 

6.      Teri Way of Wisconsin was granted total permanent disability due to exposure to smoke in the workplace.

 

7.      Economist Werner Peterke received workers’ compensation for asthma and bronchitis induced by smoking in his place of work.

 

8.      Linda Batchelor of California won a workers’ compensation award of $17,500 for headaches and other acute symptoms she suffered while surrounded by workplace smoke.

 

 

 

 

B. EMPLOYER NEGLIGENCE UNDER COMMON LAW

 

            Since the employer has a common law duty to protect the employee from ETS, can the employee collect damages for workplace ETS-induced injury?  In most cases, the exclusive remedy provision of state workers’ compensation law will preclude such a scope of workers’ compensation, the employee has a legitimate common law negligence action against the employer for failure to provide a smoke-free workplace.

 

            In McCarthy v. State of Washington, the Washington Supreme Court ruled that an employee who developed disabling chronic obstructive lung disease from years of workplace ETS exposure could sue the employer for failure to protect her from the hazards of ETS.  The suit was not pre-empted by state workers’ compensation law because the disease was felt to lie outside its coverage.  This is a landmark decision because it essentially ensures that employees who do not receive workers’ compensation for workplace ETS-induced injury can file negligence suits against the employer for failing to comply with the common law duty to protect the employee from such exposure.  In the McCarthy case, the suit was settled out of court for $27,000.

 

C. UNEMPLOYMENT COMPENSATION

 

            There is now a strong legal precedent in California for employees to collect unemployment compensation benefits if they terminate employement because of fear of health damage from ETS.  The California Court of Appeals has twice awarded a plaintiff unemployment compensation benefits after the voluntary termination of employment simply for fear of health damage from involuntary tobacco smoke exposure.

 

1.      In Alexander v. Unemployment Insurance Appeals Board, the Board was forced to pay unemployment insurance benefits to an X-ray technologist who quit her job because of an allergy to tobacco smoke.

 

2.      In McCrocklin v. Employment Development Department, the Court awarded compensation to an engineering writer who left his job for fear that he was being exposed to carcinogens in ETS.  The employee was not allergic to tobacco smoke, and had in fact smoked a pipe and cigars in the past.

 

Similar rulings have been made in New Jersey, Pennsylvania, and Georgia:

 

3.      In Appell v. Morristown Board of Education, an employee was awarded compensation after resigning due to eye irritation and headaches due to smoke exposure.

 

4.      In Lapham v. Commonwealth of Pa. Unemployment Compensation Board of Review, an employee was awarded benefits after resigning due to allergic bronchitis caused by workplace smoking.

 

5.      In Georgia, a State Merit System employee won three months of benefits after leaving her job because of cigarette smoke.

 

CONCLUSION

 

 

            It is clear that restaurant employers are required, under common law, to provide a smoke-free work environment for employees. In addition, under Federal and state law, they must protect employees who are especially sensitive to smoke by providing a smoke-free work environment.  When they fail to do so, employees have three potential remedies:

 

  1. To collect workers’ compensation benefits for ETS-induced injury.

 

  1. To file suit against the employer for damages due to failure to protect from the hazards of ETS, if the injury is ruled not to be within the scope of workers’ compensation; and,

 

  1. To terminate employment for fear of health damage from ETS, and collect unemployment compensation benefits.

 

 

            Claims in each of these three areas have been made by employees affected by ETS at work, upheld by the courts, and have resulted in numerous large awards or settlements.  The protection for nonsmoking workers in California is particularly strong.

 

            With increasing public awareness of the health hazards of secondhand smoke, the significance of employer liability for ETS-induced injury will increase.  In fact, several recent legal reviews document the increase in involuntary smoking claims against employers.  As one review points out, employers are no longer immune from liability for ETS-related injury: “Today, the situation is different.  Actions against employers are common…”.  Recently, one lawsuit against an employer was filed for $5 million.  Regardless of the outcome of these suits, employer liability for ETS-induced worker injury will become an increasingly important issue for employers.  Potential liability can be eliminated, however, by acting to protect nonsmoking employees from the hazards of ETS.

 

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[1] Are results controlled for active smoking?