Description
Identify major issues with smoking discrimination and understand how they can impact policy discussions and implementation in the workplace.Many employers are learning that a sizable percentage of employees still consume or smoke tobacco or other lawful products. The use of such products by employees raises the potential need for policies at the workplace to bar, prohibit, or regulate the use of such products while allowing for their consumption away from the workplace. In addition, the use of such lawful products such as tobacco may result in the occurrence of claims of disability or aggravated medical conditions that may call for an employer to participate in the interactive process required by federal or state laws governing disability discrimination claims. Moreover, the lawful rights of smokers and nonsmokers may require a course of action by an employer that produces new HR policies that are accompanied by education and training efforts supporting their consistent application while allowing for medical and other lawful exceptions.
Date: 2021-07-19 Start Time: End Time:
Learning Objectives
The Legal History Behind Smoking Restrictions at Work
• OSHA’s Failed Attempt to Regulate Workplace Smoking
• Survey of FDA’s Actions and Rules Regulating Tobacco
• Safety Measures Undertaken by State and Local Governments
State Privacy Laws and Their Impact on Regulating Workplace Smoking
• Smoker Protection State Laws That Developed Into State Privacy Statutes
• Examples of Statutory and Regulatory Procedures for Employee Claims
• Common Law Privacy Claims Including Intrusion Upon Seclusion
• Examples of Workplace Smoking Violation-Related Claims and Workplace Disciplinary Actions
Employer Protections for Personnel
• Americans with Disabilities Act
• What May Qualify as a Disability Under the ADA
• What May Qualify as Substantially Limiting a Major Life Activity
• Can Employee Claim That Employer Regarded Employee as Disabled?
• What May or May Not Constitute a Reasonable Accommodation Under the ADA?
• Potential Application of State Disability Rights Laws
• Survey of Employee Claims of Disability Caused by Tobacco Smoke
• Anti-Retaliation Claims Over Alleged Employer Reactions to ADA Claims
Workers’ Compensation Claims
• Potential Workers’ Compensation Claims Based on Exposure to Second Hand Smoke
• Workers’ Compensation Claims and Insurance Ratings
• Employees With Allergies or Asthma
• Employees Who Have Long-Term Exposure to Secondhand Smoke
• Anti-Retaliation Claims Over Alleged Employer Reactions to Workers’ Compensation Claims
Does an Employer Have Other Legal Duties to Provide a Safe Workplace That May Involve Tobacco?
• OSHA General Rule
• Common Law Principles and Cases
• Potential Liability Exposure of Employers
Labor and Wage Issues
• Do Workplace Smoking Issues Have to Be Bargained Over With Union by Employer?
• Compensable Break Time Spans of 20 Minutes or Less
Additional Issues Around Smoking
• Smokeless Tobacco
• Vaping Devices
• Comparisons With Treatment of Legal Usage of Marijuana by Employees
The Family Medical Leave Act
• What Accommodations Were Requested by the Employee?
• What Accommodations Were Granted by the Employer?
• What Do the Physicians Say Prevents an Employee From Returning to Work and Performing Job Duties?
• Is There a Pattern of Continuous Disability-Related Harassment Sufficient to Support an FMLA Retaliation Claim?
The Interaction of Smoking Rights and Regulation With Public Place Regulations
• Employer Practices
• Clear Policies Acknowledged by Employees
• Consistent Application of Procedures and Policies When Violations Occur
• What Absence of Consistent Application or Lack of Enforcement of No Smoking Policies Can Do in Potentially Creating Alleged Evidence of Disability Discrimination
• Common Law Privacy Torts • Intrusion Upon Seclusion
• Distinction of Rights Regarding Employee Use of Lawful Products at and Away From Workplace
CLE (Please check the Detailed Credit Information page for states that have already been approved) ,HR Certification Institute ,SHRM ,Additional credit may be available upon request. Contact Lorman at 866-352-9540 for further information.
Ambrose V. McCall-Hinshaw & Culbertson LLP
