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Secondhand Smoke And Workers’ Compensation

Friday, April 5, 2019  
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Lawyers.com

by Larry Pitt

Secondhand Smoke And Workers’ Compensation

Pennsylvania employees are entitled to safe and healthful work environments under the General Duty Clause of the Pennsylvania Workers’ Compensation Act (the Act). This means that employers have a duty to ensure that their workplaces are free from known hazards that are likely to cause serious harm or death. Secondhand smoke is an established health risk; therefore, workers who are exposed to secondhand smoke at work may be eligible to collect workers’ compensation benefits for secondhand smoke-related illnesses.

Environmental Tobacco Smoke (ETS)
The dangers of secondhand smoke are well-documented. ETS is classified as a Group A carcinogen, according to the U.S. Environmental Protection Agency (EPA). Secondhand smoke can cause mild effects including coughing, watery eyes, and skin conditions.

However, the EPA cautions that nearly 34,000 premature deaths occur each year in the U.S. due to secondhand smoke. Nonsmokers who are exposed to secondhand smoke are at a 25 to 30 percent increased risk of developing heart disease and a 20 to 30 percent increased risk of developing lung cancer.

Allergic/Asthmatic Reactions to Secondhand Smoke
Pennsylvania employees who develop severe allergic reactions to secondhand smoke in the workplace may be eligible for workers’ compensation. The World Health Organization (WHO) reports that approximately 24.5 million missed workdays per year are due to occupational asthma. If ETS is affecting a worker’s health and interfering with their ability to work, their employer must make reasonable accommodations and/or provide medical treatment.

Workers who have conditions that are exacerbated by secondhand smoke may be considered disabled under the Americans with Disabilities Act (ADA) as well as state disability laws. Those with qualifying disabilities under the ADA are entitled to reasonable workplace accommodations, such as a smoke-free work environment.

Studies have shown that smoke-free policies are beneficial, inexpensive, and easy to implement. Therefore, employers may not rest on the “undue hardship” exception of the reasonable accommodation requirement. Under the Act, they have a duty to take reasonable measures to control secondhand smoke.

Workers’ Compensation for Prolonged ETS Exposure
ETS claims were traditionally denied in the past. However, courts have recently been more willing to grant compensation for illnesses caused by secondhand smoke. Generally, a worker must have been exposed to secondhand smoke at work and must have attempted to avoid exposure to smoke from sources outside of the workplace in order to recover benefits.

Workers may be able to recover benefits for illnesses caused by prolonged exposure to secondhand smoke. However, these claims tend to be more difficult to prove due to the possibility that non-work factors contributed to causing the illness. However, if workers can show that their illness is work-related, prevents them from working, and requires medical treatment, they may be entitled to various types of workers’ compensation benefits, including compensation for medical expenses and lost wages.


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