As the seriously debilitating effects of environmental
tobacco smoke (ETS) have become known, employers and employees, as well as
individuals generally, have recognized that the rights of persons affected by
ETS are violated in certain cases when they are subjected to ETS either in the
workplace or in public places and that there may be recourse for the victims of
ETS. This is an area of law which is evolving as new laws are enacted
concerning smoke-free environments, old laws are amended, and courts interpret
existing laws. As a result, the rights of persons afflicted by ETS are
expanding, and the potential liability of employers and owners of businesses
who permit smoking is growing.
In this section of the SFELP web site, we have
included information on major areas of law dealing with ETS, including
citations to relevant cases. Additional materials will be added to this site on
a regular basis. Also, go to the Links section of this site for direct links to
various legal resources. The information provided herein is written for a wide
range of audiences, including employers, the general public and the legal
profession. These materials and links to other sources are provided for
informational purposes only and are not intended to be and should not be
construed as legal advice.
MICHIGAN STATEWIDE SMOKE-FREE WORKPLACES AND PUBLIC
PLACES LAW
Michigan Governor Jennifer Granholm on December 18,
2009 signed into law a ban on indoor smoking in almost all workplaces and
public places. The Legislature passed an amended House Bill 4377 on
December 10th after years of stalemates over exceptions in the law. The measure
allows indoor smoking only in three Detroit casinos on the gaming floors, cigar
bars, specialty tobacco shops, home offices and motor vehicles, including
commercial trucks. The smoke-free law, which takes effect May 1, 2010, makes
Michigan the 38th state with such a law. To access a copy of the new law
in pdf format click here. For additional information
about the law, what it covers, and how it will be implemented, go to the state
of Michigan site by clicking above.
AMERICANS WITH DISABILITIES ACT (ADA)
The federal Americans with Disabilities Act (ADA) took
effect in 1992 and is intended to provide a comprehensive national mandate to
eliminate discrimination against people with disabilities. The ADA prohibits
discrimination against individuals with disabilities by employers with 15 or
more employees, state and local governments, and in places of public
accommodation. Persons who are substantially limited in a major life activity
as a result of exposure to ETS may be covered by the ADA, and the ADA may
provide these individuals with certain remedies or protections.
The Americans with Disabilities Act: Effective
Legal Protection Against Secondhand Smoke Exposure
In April, 2004, the Tobacco Control Legal
Consortium, of which the Smoke-Free
Environments Law Project (SFELP) is a founding member, published a "law
synopsis" of the above title which discusses the use of the Americans with
Disabilities Act (ADA) as a potential legal remedy for persons exposed to and
severely effected by exposure to secondhand smoke. The article was written by
SFELP Consulting Attorney Clifford Douglas and can be accessed, in pdf format,
by clicking here.
Title I of the ADA and ETS in the workplace:
SFELP has prepared a brief analysis of Title I of the
ADA which addresses the ADA's prohibition against discrimination against
disabled persons in the workplace, particularly as this applies to persons who
have breathing or related problems which are severely exacerbated by secondhand
smoke in the workplace. This analysis includes U.S. Supreme Court and related
cases from 2000 and 2001. To access this analysis, which was prepared in July,
2001, click here.
Title II of the ADA and ETS in State and Local
Facilities:
Full Panel of 6th Circuit Court of Appeals Rules
Title II of ADA Can Be Used to Sue States and Localities for Discriminatory
Conduct: Decision Affects Secondhand Smoke Cases in Michigan and 3 Other States
-- Other Circuit Courts have Ruled Differently
On January 10, 2002, the 6th U.S. Circuit Court of
Appeals, sitting en banc, issued
an opinion , in Popovich v. Cuyahoga County which overturned a September 18, 2000 opinion of a
3-judge panel of the same U. S. Court of Appeals. The January 10, 2002 opinion
held that Congress had validly abrogated states' Eleventh Amendment immunity
from lawsuits by citizens when it enacted Title II of the Americans with
Disabilities Act (ADA). The ADA allows individuals to sue states and localities
for discriminatory conduct covered by the ADA. Earlier, in its September, 2000
decision, the 6th Circuit Court, had said that Congress exceeded its authority
in Title II of the ADA when it abrogated States' sovereign immunity under the
11th Amendment to the Constitution; the 11th Amendment protects states from
being sued in most instances, and the 6th Circuit said that Congress lacked the
basis for overriding this immunity when it enacted Title II of the ADA.
However, in its January, 2002 opinion, relying upon the U.S. Supreme Court's
decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 issued on February 21,
2001, the 6th Circuit Court of Appeals reversed the 2000 decision, saying that
citizens can bring lawsuits against states under the ADA, based on Section 5
and the Due Process clause of Section 1 of the 14th Amendment. This decision
means that in the 4 states covered by the 6th Circuit (Michigan, Ohio, Kentucky
and Tennessee), Title II of the ADA is available to be used to sue states or
local units of government for discrimination covered by the ADA. Since the ADA can
be used to protect persons from discrimination in the workplace and in public
accommodations, including persons who are severely harmed by contact with
secondhand smoke, the ADA provides a legal remedy for protecting individuals
from secondhand smoke. [The ADA is also available as a remedy against private
employers and all non-governmental entities, under Titles I and III of the
ADA.] (U.S. Appeals Courts in the 2nd, 5th, 9th, 10th and 11th Circuits have
also said Title II can be used against the States; however, U.S. Appeals Courts
in the 7th and 8th Circuits have ruled that states are protected from such
lawsuits by the sovereign immunity clause of the 11th Amendment.) For the full
September 18, 2000 6th Circuit decision, click here.
For the full January 10, 2002 decision of the full 6th Circuit, overruling
the earlier decision, click here.
Title III of the ADA and ETS in public
accommodations:
SFELP has prepared a brief analysis of Title III of
the ADA which addresses the ADA's prohibition against discrimination against
disabled persons in places of public accommodation, particularly as this
applies to persons who have breathing or related problems which are severely
exacerbated by secondhand smoke in public accommodations or commercial areas.
Title III covers persons seeking to receive services or participate in programs
or activities provided by a public accommodation or commercial facility, such
as public offices, retail facilities, restaurants and bars, museums, arenas,
etc. This analysis includes U.S. Supreme Court and related cases from 2000 and
2001. To access this analysis, which was prepared in July, 2001,
click here.
Rights of Employees Who Have Encountered
Retaliation by Employers after Requesting Accommodation Under the ADA,
Including in Cases Involving Secondhand Smoke
SFELP has prepared an analysis of the federal,
Michigan and common law claims that may be available to an employee who has
suffered various forms of retaliation in the workplace after pursuing his/her
rights under the Americans with Disabilities Act (ADA), including in cases
involving complaints about secondhand smoke in the workplace. For information,
click here. click here.
What does the ADA have to do with Second-Hand
Smoke?
This is a link to the Tobacco Control Resource
Center's site in Boston and provides information on the ways in which the
American's with Disabilities Act can be utilized by persons who are seriously
affected by second-hand smoke. click here.
Department of Justice ADA Home Page:
This link to the DoJ ADA site provides a wide variety
of information on the ADA, including: recent ADA news from DoJ; ADA enforcement
status reports; ADA settlements and consent agreements; ADA technical
assistance programs; links to certification of state and local buildings codes;
ADA regulations and technical assistance materials and manuals; information on
the ADA mediation program; and related materials.click
here.
EEOC analysis of 1998-99 U.S. Supreme Court
decisions concerning "disability" under the ADA
This link to the U.S. Equal Employment Opportunity
Commission site provides the EEOC's July 26, 1999 "Instructions for Field
Offices: Analyzing ADA Charges After Supreme Court Decisions Addressing
'Disability'and 'Qualified.'" These instructions are to assist EEOC Field
Offices in gathering and analyzing evidence when assessing whether a person has
a "disability" and provides guidance on issues that the EEOC Field
Offices should examine in making this determination, including whether a person
is substantially limited in a major life activity when they are using a
mitigating measure, such as medication. click
here.
Analyses of the Rights of Individuals to Enforce
Federal Rights - Including the Americans with Disabilities Act - Against States
& State Officials
The National Senior Citizens Law Center has produced a
series of analyses recently dealing directly with the U.S. Supreme Court
decision covering the Americans with Disabilities Act (ADA) -- the Garrett case -- and related cases, including the Sandoval case. These cases particularly concern the rights of
individuals to use the ADA and related federal laws to bring lawsuits against
state governments and state officials. These cases are relevant because the ADA
can be used to enforce the rights of persons who have severe breathing problems
that are aggravated by secondhand smoke; the ADA is available to be used in
workplaces and public accommodations. On May 9th, 2001 the Federal District
Court of Northern Illinois handed down a decision in Access Living of
Metropolitan Chicago v. Chicago Transit Authority in which the court upheld a Title II ADA claim against
a unit of local government; for a brief analysis of this case, click here.
For the full 17 page decision, in pdf, click here. For an analysis of the Garrett case, click here.
For an analysis titled "Life After Garrett," click here.
For an analysis of "Enforcing Federal Rights Against States &
State Officials," click here.
U.S. Justice Department Argues Congress Validly
Waived State's Immunity from Lawsuits Under Title II of the ADA
Since the University of Alabama v. Garrett decision earlier this year, in which the Supreme Court
ruled that Congress did not have the authority to waive states'immunity to
lawsuits under Title I of the Americans with Disabilities Act (ADA), there has
been a question of whether Congress validly waived states'rights to be sued
under Title II of the ADA. The Supreme Court had noted in Garrett that it was not addressing the Title II question in
that opinion. On April 13th, the U.S. Justice Department, in the case of Garcia
v. State University of New York Health Sciences Center at Brooklyn, which is before the U.S. 2nd Circuit Court of Appeals,
filed a brief in which it argued that Congress had established a legislative
record that supported Congress'decision to abrogate states'11th Amendment
immunity from lawsuit under Title II of the ADA. Having the current U.S.
Justice Department arguing this position is significant, particularly because
it runs counter to the states'rights position that a narrow majority on the
U.S. Supreme Court has been setting forth in a variety of decisions, including
in Garrett. This is important for
advocates of smoke-free environments because the ADA is one of the few federal
laws that can be used to protect the rights of persons with breathing
disabilities which are exacerbated by secondhand smoke. Title II ADA claims
would deal specifically with the actions of state and local governments. For
the complete, 70+ page brief in pdf format, click here.
For additional information on the ADA, including
links to the full law: Go to the Links
section of the SFELP web site by
clicking here.
THE FEDERAL FAIR HOUSING ACT AND THE
PROTECTION OF PERSONS WHO ARE DISABLED BY SECONDHAND SMOKE
Infiltration of Secondhand Smoke into Condominiums,
Apartments and Other Multi-Unit Dwellings
In April, 2004, the Tobacco Control Legal
Consortium, of which the Smoke-Free
Environments Law Project (SFELP) is a founding member, published a "law
synopsis" of the above title which discusses legal remedies available to
tenants and landlords concerned about secondhand smoke infiltration. The
article was written by SFELP Consulting Attorney Susan Schoenmarklin and can be
accessed, in pdf format, by clicking here.
The Federal Fair Housing Act, HUD Opinions/Letters,
& Secondhand Smoke
The federal Fair Housing Act (FHA) prohibits housing
discrimination based on race, color, religion, sex, family status, national
origin, or disability. The FHA,
among other things, prohibits discrimination against people with disabilities,
including those with severe breathing problems which are exacerbated by
secondhand smoke. The FHA prohibits such discrimination by owners and operators
of most housing, including most apartments and Section 8 and other HUD-assisted
housing. It is clear from the language of the FHA, its interpretation by HUD
General Counsel, and court decisions, that the FHA is available to people with
breathing disabilities to seek reasonable accommodations from owners and
operators of most housing in the United States in order to address the serious
health hazards posed by secondhand smoke which infiltrates their housing. A
detailed analysis of this issue by the Office of the General Counsel of the
U.S. Department of Housing and Urban Development (HUD) was prepared in 1992 and
is still in effect; a copy may be accessed from the HUD site by clicking here.
For a link to HUD's online complaint form which can be filed directly,
click here.
For a link to download the HUD complaint form, in pdf format, so that it
can be sent to a HUD office, click here. To
access an analysis by SFELP of the FHA and how it can be used to protect
persons who have breathing disabilities which are caused or exacerbated by
secondhand smoke in their housing situations, click here.
HUD Legal Counsel Opinion: Landlords Are Free To
Make Apartments Totally Smoke-Free
At the request of the Smoke-Free Environments Law
Project, the Chief Counsel of the Housing & Urban Development (HUD) field
office in Detroit issued an opinion on July 18, 2003 in which she stated that:
"Currently, there is no HUD policy, by statute, regulation, handbook or
otherwise that restricts landlords from adopting a prohibition of smoking in
common areas or in individual units." The opinion goes on to state that
there is nothing in federal law, including the federal Fair Housing Act (see
SFELP analysis of the FHA above), or in Michigan law (see Michigan AG Opinion
below) which prevents a landlord from making some or all of his/her apartment
units smoke-free. The opinion states: "Similar to Michigan law, federal
law does not prohibit the separation of smoking and non-smoking tenants in
privately owned apartment complexes and in fact, does not prohibit a private
owner of an apartment complex from refusing to rent to smokers." The only
caveats to this policy which the opinion lists are: 1) if the apartment owner
wishes to make the policy a condition of the lease, HUD approval is necessary
to the extent that the owner is bound to utilize HUD's model lease; and 2) "if
owners seek to make their complexes smoke-free they must take caution to
grandfather in those smoking residents currently residing at the complex."
To access this opinion, click here for page 1, and click here for
page 2.
Michigan Attorney General's legal opinion:
Privately-owned apartment complexes can be smoke-free
This is a link to a 1992 Legal Opinion of the Michigan
Attorney General which examined the issue of whether privately-owned apartment
complexes could be either entirely smoke-free or have certain buildings in a
complex be smoke-free. The Attorney General concluded as follows: "It is
my opinion, therefore, that neither state nor federal law prohibits a
privately-owned apartment complex from renting only to non-smokers or, in the
alternative, restricting smokers to certain buildings within an apartment
complex." There has been nothing enacted in Michigan or federal law since
this opinion was written which would overrule this opinion. To access the
opinion, click here here
For more information on your rights to a smoke-free
apartment: go to the MI Smoke-Free
Apartment web site by clicking here and
to the ETS & Apartments and Condominiums section of the SFELP web site by clicking here.
CLEAN INDOOR AIR ACT (MICHIGAN)
The Michigan Clean Indoor Air Act prohibits smoking in "public places,"
except in designated areas. While any facility may adopt a total ban on
smoking, the Clean Indoor Act does not require this; instead, those
"public places" covered by the law may designate smoking areas, and
these areas do not have to be physically separated and ventilated from other
non-smoking areas. Further, only certain types of facilities are covered by the
law. Thus, the law provides only limited protection from ETS and limited
remedies. To link to the Michigan Clean Indoor Air Act, which is Public Act 198
of 1986, as amended, (MCL Section 333.12601 et seq) click here. For more detailed information
developed by SFELP, click here.
Michigan Executive Order 1992-3 makes almost all state government buildings smoke-free
indoors, but it also prohibits smoking "a reasonable distance from all
entrances to state government facilities," leaving it to individual Department or Agency heads
to define what this means in a given facility. We believe that the term
"reasonable distance" is not without common sense meaning, and having
to walk through a wall of smoke to enter a state building would mean that
smokers were not staying a reasonable distance from the entrance. Complaints
can be filed with the applicable state agency by anyone -- state employees and
other citizens -- who believes she or he has a valid complaint. To access
Executive Order 1992-3, click here.
For additional information on the Clean Indoor Air
Act, including links to the full law, go to the Links section of this site.
SMOKING IN RESTAURANTS & BARS IN
MICHIGAN
The Michigan Public Health Code at 333.12905 (Public
Act 242 of 1993) provides that smoking in food service establishments, which
include restaurants and bars, as defined in the Michigan Food Law of 2000 at
section 289.1107, is only somewhat restricted. The Michigan law states that a
food service establishment may voluntarily adopt a total ban on smoking.
However, the law provides that, if a food service establishment with a seating
capacity of fewer than 50 wishes to allow smoking, it has to designate at least
25% of its seating for nonsmokers. If a food service establishment with a seating
capacity of more than 50 wishes to allow smoking, it has to designate at least
50% of its seating for nonsmokers. The law does not require that these
designated smoking areas be totally physically separated from the smoking
seating; the law says that the seating for nonsmokers shall be clearly
identified, shall place the seats for nonsmokers in close proximity to each
other, and locate the seats for nonsmokers so as not to discriminate against
nonsmokers. Persons who have complaints about the manner in which food service
establishments are carrying out this law may send written complaints to the
local health department, which has 5 days after receipt of the complaint to
investigate the complaint to determine compliance. To access section 333.12905
of the Michigan Public Health Code, click here.
Analysis of Michigan Appeals Court Decision on the Authority of Localities to Ban Smoking in Restaurants: The Marquette Case
On March 13, 2001, the Michigan Appeals Court issued a
ruling in which it stated that localities were preempted by state law from
totally banning smoking in food service establishments, which include
restaurants and bars, but which left localities with the power to regulate
certain aspects of smoking in restaurants. This decision was appealed by the
City of Marquette to the Michigan Supreme Court, but on May 6, 2002 the Court
declined to hear arguments in the case. Therefore, the Appeals Court decision
is the law in the state of Michigan. For an analysis of the decision by the
Smoke-Free Environments Law Project, click here. For the majority
opinion in the case, click here. For the
concurring and dissenting opinion, click here.
MICHIGAN TOBACCO-FREE SCHOOLS ACT
The Michigan Tobacco-Free Schools Act, referred to as
Public Act 140 of 1993, prohibits the use of tobacco in public school buildings
at all times; this includes smoking tobacco products, chewing tobacco, carrying
lighted tobacco products, or placing a tobacco product in a person's mouth. The
law also prohibits the use of tobacco on outdoor school property; however, the
law states that the prohibition on the use of tobacco does not apply to outdoor
school property, including open-air stadiums, during either of the following
time periods: Saturdays, Sundays and other days on which there are no regularly
scheduled school hours; and after 6:00 p.m. on days during which there are
regularly sceduled school hours. Violators of the law are guilty of a
misdemeanor, which is punishable by a fine of not more than $50. The
enforcement agency for this law is the Tobacco Section of the Michigan
Department of Community Health, at 517 335-8376. To access a copy of this law,
click here.
WORKER'S COMPENSATION LAWS (MICHIGAN)
The Michigan Worker's Compensation Law (MCL Section
418.101) enables individuals to seek monetary benefits for bodily injury caused
or aggravated by employment-related accidents or diseases. While there have
been only a limited number of cases decided involving ETS, Michigan has
recognized ETS as a cause of certain occupational diseases, especially those
related to lung and respiratory problems. Further, upon notification of the
employer by a worker that s/he is suffering from an injury or physical
condition due to ETS in the workplace setting, the employer has an obligation
to make reasonable accommodations to address the problem. For more detailed
information developed by SFELP, click here.
For additional information on Michigan Worker's
Compensation, including links to Michigan statutes and opinions, go to the
state of Michigan site by clicking here.
FEDERAL MEDICAID AND MEDICARE LAWS DO
NOT REQUIRE LOCALITIES OR STATES TO EXEMPT NURSING HOME RESIDENTS FROM
SMOKE-FREE LAWS
In 2006, a lobbying organization for Indiana's
for-profit nursing homes pressured Delaware County Commissioners to exempt
nursing home residents who are currently smokers from having to adhere to the
county's smoke-free law. They claimed that federal and state Medicaid and
Medicare laws require localities to exempt current residents who are smokers
from the smoke-free law. The Smoke-Free Environments Law Project (SFELP) was
contacted by Indiana health groups about these claims and asked if we would
prepare a response to the nursing home lobbyist's assertions. We researched the
issue and concluded that the nursing home lobbyists were incorrect. In fact,
the answer is demonstrably clear that federal and state Medicaid and Medicare
laws do not require such an exemption. To access a copy of a 3-page memorandum
prepared by SFELP's Director, Jim Bergman, addressing these issues, click here. For a September, 2006 news report
about the Delaware County situation, click here. Periodically, these issues arise
around the country, and this memorandum should assist in addressing the
matters. For additional information on Smoking Policies in Facilities
Serving Older Persons click here.
FEDERAL OSHA REGULATIONS ON INDOOR
AIR QUALITY
The federal Occupational Safety & Health
Administration (OSHA) has in the past decade devoted increasing attention to
the issue of indoor air quality, including secondhand smoke. On April 5, 1994,
OSHA issued proposed Indoor Air Quality regulations which dealt with secondhand
smoke in the workplace as well as other issues; OSHA received numerous comments
on these regulations, but has not subsequently issued final regulations. The
OSHA web site has links to a number of materials related to this issue,
including to the proposed regulations; these materials provide valuable
information for persons working on state OSHA issues concerning secondhand
smoke in the workplace. click here to go to the OSHA site.
TOBACCO: A LEGAL & POLICY ISSUE
This 1996 article titled Tobacco: A Legal &
Policy Issue of the Elderly by Saidy
Barinaga-Burch and James A. Bergman of The Center for Social Gerontology
discusses various legal issues and theories that concern tobacco and older
persons. Many of these issues also affect younger persons, including ETS and
the American's with Disabilities Act, Worker's Compensation issues,
Unemployment Compensation, common law remedies, and class action lawsuits. The
article provides citations to numerous related cases. click
here.
SEE ALSO THE SECTION OF THIS SITE
TITLED: ETS & APARTMENTS AND CONDOMINIUMS.
Smoke-Free
Environments Law Project
The Center for Social Gerontology
2307 Shelby Avenue
Ann Arbor, MI 48103
734.665.1126
734.665.2071 Fax
SFELP@tcsg.org