Second Hand Smoke Complaint

CLSmith · August 2007

We are a small privately owned company with no smoking policy. President of Operations smokes in his office located off main office. Admin./Sales Asst. sits in main office & is pregnant. Her doctor strongly advised she avoid second hand smoke. She discussed with me & I discussed with Pres.of Ops. He said he would not smoke in main office but continues to smoke in his office & the main office. Today Admin/Sales Asst. brought in note from Dr. requesting she not be exposed to second hand smoke. She gave Pres. of Ops note & he threw a fit. She is only asking him to step out of his office onto a shop balcony to smoke. I will discuss with owner, but if he sides with Pres. of Ops, what is our legal company exposure?

FunHRBanker · August 2007

[font size="1" color="#FF0000"]LAST EDITED ON 08-21-07 AT 07:27AM (CST)[/font][br][br]If you have a no smoking policy, why does the Pres. of Ops continue to do so in his office?

I did read the post wrong, sorry! I agree that the guy is acting like a jerk (my OPINION). She's not asking him to stop smoking, she's asking him not to smoke around her.

Toto · August 2007

I took it to mean they have no "smoking policy" not a "No smoking" policy. Is that correct?

As to the question, I am not sure of your legal exposure but you have already incurred a cost by your "smoker" acting like a jerk.

If she is a good EE, you may lose her. If she stays & is exposed to smoke, then has a low weight baby with extra hospital costs your chances of having to defend a legal action, even if you win, may not be worth it.

Mention sick baby & a few mothers on a jury to CEO & CFO and see if they see dollar signs. $$$

Paul in Cannon Beach · August 2007

There is no question that the trend in most if not all states is towards banning smoking indoors.

You can start now or wait until your state or municipality become smoke free by law.

Its just the way things are going. In your case, you have a very good reason to start now and stay ahead of the curve.

SMace · August 2007

Check your local and state laws. Most deal with public places, but some also deal with businesses.

This may be a bit of a stretch, but it may be an OSHA issue. They have a general duty clause that could come into play.

Also, you said he agreed not smoke in the main office then you went on to say he is still doing it. Is that true?

The owner needs to recognize there are other issues than legal. I started to rant, but I'm not going to waste my time. The guy's an idiot. I suggest you print out the thread and show it to the owner.

I think MissK needs to go down there and wop him upside the head.

CLSmith · August 2007

Sorry! I was not clear as to the policy statement. We do not have a "smoking policy". There are only two people in our office that continue to smoke "in the office" - all others go to an area in our shop. One of these EE's is trying to stop and has left her know he will not smoke in office anymore. Our only problem is the Pres. of Ops. I spoke with Admin/Sales gal today and then to Pres. of Ops. - Pres. of Ops has decided to give her the opportunity to take a lay-off until the baby is born. He said he will hold her job until she returns. Both seem happy about this resolution.

Thanks for the input! PA is moving forward with the No Smoking issues. Hopefully we'll see some laws established in the very near future!

SMace · August 2007

I'm going to try to summarize. Your Pres. is going to lay-off a pregnant woman so he can continue to smoke in his office.

I'm not sure I can wrap my brain around all the issues associated with that plan of action.

CLSmith · August 2007

Unfortunately, I deal with an Owner and a Pres. of Operations that do not consider any forces outside our walls.

Since the EE does not qualify for our STD yet, we discussed trying to accommodate her by moving her to another office to do her job, but she still would have to report to the Pres. of Ops.-she was concerned that he would retaliate, since everyone would then know she was moved because of him. She's happy with the arrangement because she won't be dealing with the smoke or the stress daily. She likes her job under normal conditions and plans to return after the birth of her baby. He says it works for him, because he was going to have to cut overhead, due to the season slow down.

All sounds pretty bizarre - just another day in our office!

gingerflwrs · August 2007

WOW! Good luck with this one. I once worked at a foundry. We had a pregnant woman resign. No reason given. She then went to unemployment and said she quit because she was being exposed to lead, etc. that would cause harm to the baby. Our company performed constant lead checks, etc., plus she worked in the office. Guess who won unemployment. It wasn't the company.

I can't even imagine laying off a pregnant woman because someone won't stop smoking whether or not they agree to the layoff. If she winds up going to an attorney and says she was laid off (retaliated against) because she requested someone not smoke around her, how are you going to defend yourself. And who's to say she really wants to come back. You've just agreed to send her home with pay even though a doctor has not declared her disabled. And the company is lying to unemployment by laying her off for this reason.

I work for a privately-held company and one owner is very strong willed, however, I know when I explain the possible ramifications of a decision they trust my opinion. If not, then why am I here? I hope your company has a good attorney.

CLSmith · August 2007

Thanks Ginger for your response! I'm going in to talk to the Owner this afternoon. I'll let you know how I make out. Just a note to enlighten you on our company structure. We do not have an HR Department or HR person. I handle the benefits and commercial insurance and am expected to keep an eye out for EE problem situations. I try to keep us compliant without the authority to have much input on the decision making. The Pres. of Ops. would be our company representative in court for this situation, if it would come to this. Wish me well going in....

SMace · August 2007

Ginger did a great job wrapping her brain around the issues. The primary issue COULD be the Pregnancy Discrimination Act which is an amendment to Title VII. Feel free to Google it. This would be an EEOC issue and they do not screw around once they are given the scent and put on the trail.

gingerflwrs · August 2007

Glad I could help. Good luck!

Paul in Cannon Beach · August 2007

I checked online and it looks as if there is an effort to make Pennsylvania a "smoke free workplace" state.

If that is the case, a situation like yours would be EXACTLY what is needed to really swing public opinion over and get the votes needed.

"Loyal pregnant employee laid off by chain-smoking boss."

You would be handing the smoke-free workplace groups an early christmas present. That is not the kind of publicity any organization would want.

CLSmith · August 2007

I met, individually, with the CFO, EE, & Pres. of Ops. CFO said not to bother CEO/owner with this, because owner expects Pres.of Ops. to start laying off due to slow down and winter is our slowest season, so things will be getting worse before they get better. CFO agrees that if EE is happy with this, we'll start the lay-off process with her. She says she's happy and Pres. of Ops. gave me his explanation of how he's going to cover her job until she returns in April. March begins our busy season, so all feel this will work for her and the company.

I did google for info about the Pregnancy Discrimination Act - thanks for the lead.

I have a big pile of "no smoking policy" information that I've been gathering over the last (2) years and periodically approach the CFO & CEO concerning developing one but have not been given the go ahead with it yet. New legislation on this issue will give me the clout I need to proceed.

Thanks again everyone for your support and guidance!

ritamcguire · August 2007

If she returns in March and is breast feeding, this could still be a problem.

Your Pres of Ops needs to get a grip and either grow up or find an outside job where he won't put other people at risk; trash collector strikes me as a possibility.

Second Hand Smoke Complaint

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