SMOKE-FREE BAR FACT SHEET

LIABILITY

As Americans become more aware of the dangers of secondhand tobacco smoke it is likely that they will seek protection under available laws, and seek compensation for damages. A policy which allows smoking in a business is likely to lead to higher costs through insurance rates, administrative actions, and/or civil claims. Workers have been successful under a variety of legal theories and doctrines: including compensation for injuries caused by exposure to tobacco smoke.

Common law and negligence: when an employer fails to provide a reasonably safe and healthful workplace, by failing to mitigate the environmental hazard imposed by secondhand smoke in the workplace, they may be liable for damages.

Workers’ compensation: Both nonsmokers and smokers may collect compensation for injuries and diseases they develop due to smoking in the workplace. A waiter who suffered a heart attack as a result of working in a smoke-filled bar received $85,000. (Ubhi v. State Compensation Insurance Fund, Cat ‘N’ Fiddle Restaurant Calif. Workers’ Compensation Appeals Board, 1990)

Unemployment insurance: Nonsmokers who voluntarily terminate their employment due to an honest fear of harm to their health from tobacco smoke may collect unemployment benefits at the employer's expense.

Americans with Disabilities Act: Allowing smoking in a workplace or place open to the public may be considered a violation of this law, which carries a penalty of $50,000 plus attorney’s fees for the first violation.

California Fair Employment and Housing Act (FEHA): A California bar owner who allows smoking in the bar in the presence of a disabled employee may be violating the FEHA, in addition to other laws. Violators may be subject to financial penalties.

Business and Professions Code: This general law can be used as a mechanism to enforce any tobacco control law being violated. It has been used against retailers who sell tobacco to minors, and has been used against restaurant and bar owners who allow smoking in their establishments, in violation of Labor Code 6404.5. Violators are subject to injunctions and civil penalties of $2,500 per day.

To avoid liability, it is essential to develop and implement a smoking policy that completely eliminates all tobacco smoke in all facilities open to the public.

BREATH – THE CALIFORNIA SMOKE-FREE BAR PROGRAM

A Statewide Project of the American Lung Association of the East Bay

5495 Carlson Drive, Suite ‘D’ Sacramento, California 95819

Phone: (916) 739-8925 Fax: (916) 739-8927 E-Mail: breath@jps.net

This material was made possible by funds received from the Tobacco Tax Health Protection Act of 1988—Proposition 99 under Grant Number 96-26624 with the California Department of Health Services, Tobacco Control Section. rev. 04/01