Employment Law FAQ

Are there certain questions that an employer may not ask during a job interview? When may an employee be entitled to medical leave from work? How can an employee secure a reasonable accommodation for his or her disability by an employer? How may an employer monitor employees in the workplace? When is harassment illegal? May an employer or supervisor play favorites among employees? What is considered working time under the wage and hour laws? Is an employer limited in its ability to fire an employee?

Does OSHA protect against the harmful effects of tobacco smoke in the workplace?

Does OSHA protect against the harmful effects of tobacco smoke in the workplace?

OSHA rules apply to tobacco smoke only in rare and extreme circumstances, such as when contaminants created by a manufacturing process combine with tobacco smoke to create a dangerous workplace air supply that fails OSHA standards. Workplace air quality standards and measurement techniques are so technical that typically only OSHA agents or consultants who specialize in environmental testing are able to determine when the air quality falls below allowable limits.

If OSHA won't protect me from second-hand tobacco smoke at work, is there anything I can do to limit or avoid exposure?

If your health problems are severely aggravated by co-workers' smoking, there are a number of steps you can take.

• Check local and state laws. A growing number of local and state laws prohibit smoking in the workplace. Most of them also set out specific procedures for pursuing complaints. Your state's labor or employment department should have up-to-date information about these. If you can't find local laws that prohibit smoking in workplaces, check with a national nonsmokers' rights group, such as Americans for Nonsmokers Rights, 2530 San Pablo Avenue, Suite J, Berkeley, CA 94702, 510-841-3032.
  
  
• Ask your employer for an accommodation. Successful accommodations to smoke-sensitive workers have included installing additional ventilation systems, restricting smoking areas to outside or special rooms and segregating smokers and nonsmokers.
  
  
• Consider filing a federal complaint. Most claims for injuries caused by secondhand smoke in the workplace are pressed and processed under the Americans With Disabilities Act. In the strongest complaints, workers proved that smoke sensitivity rendered them disabled in that they were unable to perform a major life activity: breathing freely.
  
  
• Consider income replacement programs. If you are unable to work out a plan to resolve a serious problem with workplace smoke, you may be forced to leave the workplace. But you may qualify for workers' compensation or unemployment insurance benefits.

How should I prepare to make a complaint, either within my company or to a state or federal agency?

Start by collecting as much detailed evidence as possible about the specifics of your harassment.

Be sure to save any offensive letters, photographs, cards or notes you receive. And if you were made to feel uncomfortable because of jokes, pin-ups or cartoons posted at work, confiscate them -- or at least make copies. An anonymous, obnoxious photo or joke posted on a bulletin board is not anyone else's personal property, so you are free to take it down and keep it as evidence. If that's not possible, photograph the workplace walls. Note the dates the offensive material was posted -- and whether there were hostile reactions when you took it down or asked another person to do so.

Also, keep a detailed journal. Write down the specifics of everything that feels like harassment. Include the names of everyone involved, what happened, where and when it took place. If anyone else saw or heard the harassment, note that as well. Be as specific as possible about what was said and done -- and how it affected you, your health or job performance.

If your employer has conducted periodic written evaluations of your work, make sure you have copies. In fact, you may want to ask for a copy of your entire personnel file -- before you tip your hand that you are considering taking action against a harassing co-worker. Your records will be particularly persuasive evidence if your evaluations have been good but after you complain, your employer retaliates by trying to transfer or fire you, claiming poor job performance.

Copyright 2005 Nolo

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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