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Smoldering Legal Issue : Facing Lawsuits, Employers Are Embracing Restrictions

TIMES STAFF WRITERS

After developing a persistent cough that she blamed on secondhand cigarette smoke, Andrea Portenier pleaded with her bosses at an insurance firm to ban smoking at their Los Angeles offices.

But Portenier says the firm’s managers dragged their feet and ridiculed her. A company lawyer, she says, even asked her doctor if Portenier could solve the problem by wearing a mask at work.

Portenier struck back by suing, relying on a novel legal theory that the employer was liable for assault and battery for exposing her to secondhand smoke. After she won an early round in the case, the firm agreed this month to pay an undisclosed settlement.

Fearing an onslaught of civil lawsuits and workers’ compensation claims, employers across the country increasingly are supporting proposals by regulators and lawmakers to impose new restrictions on smoking in the workplace. Largely for the same reasons, many employers have adopted anti-smoking rules of their own that go far beyond the requirements of existing laws and regulations.

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Even though the biggest smoking lawsuits still are aimed at U.S. tobacco companies--a $5-billion class-action suit filed Wednesday against the industry is the most recent example--more and more employers worry that they too could be squeezed by legal costs.

“It’s a business decision,” said Jo-Linda Thompson, general counsel for the California Restaurant Assn., which is backing a bill by Assemblyman Terry B. Friedman (D-Brentwood) to ban smoking in most workplaces. “It’s not just one lawsuit you might be exposed to, it might be six or seven.”

Along with the Portenier suit, employers point to cases piling up in workers’ compensation courts from employees who say they were hurt on the job by exposure to secondhand smoke, which has been declared a carcinogen by the U.S. Environmental Protection Agency.

Portenier, who gave up selling insurance to teach health education at a community college, said smoke-free workplaces “aren’t just good for employees, they’re also good for the bottom line. . . . It would be great if everybody did the right thing for the right reason, but in case not, here (litigation) is another reason.”

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Last week, when U.S. Labor Secretary Robert B. Reich unveiled his department’s proposed restrictions on workplace smoking, he touted such economic benefits as improved productivity and reduced health care costs, along with the prospect of saving lives.

But so far at least, given the nation’s relatively brief experience with workplace smoking bans or restrictions, there is little more than anecdotal evidence that such rules actually boost productivity or directly reduce employers’ health care expenses.

In the state Assembly, the anti-smoking measure backed by the restaurant association has run into serious roadblocks, including opposition from some of the association’s own members and other employers. Still, a growing number of states, communities and companies are taking such steps.

In California alone, roughly 300 cities have some type of restriction on smoking, including Los Angeles’ law requiring no-smoking areas in workplaces. In addition, a 1991 survey of 833 employers across the country found that 85% had imposed some kind of smoking restriction, including 34% with outright bans.

“I don’t know of any company that’s backed down once they’ve gone to a smoking ban,” said Dale Silverman, executive director of a 3,500-member group of human resource specialists in Southern California known as PIRA.

Take, for example, Merck & Co., the New Jersey-based pharmaceutical giant that banned smoking at its U.S. sites in 1989. Smoking is prohibited anywhere on the firm’s 465-acre headquarters complex--even outdoors--with one exception: an area near a shipping dock.

Before enforcing the policy, Merck, with about 30,000 employees, notified workers 16 months in advance and offered free smoking-cessation classes. Eighteen months after the ban went into effect, the number of smokers companywide dropped 25%, a spokesman said.

“The costs to my company in lost productivity, days lost to illness and rising health care costs due to smoking were no longer acceptable,” Merck Chairman P. Roy Vagelos, a physician, said in testimony before a congressional subcommittee earlier this month.

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A Merck study done before the ban showed that lung cancer was the leading cause of death for male employees and retirees, and the disease’s incidence was rising among female workers, the spokesman said.

At Pacificare, a Cypress-based health maintenance organization, smoking has been banned inside buildings for eight years.

“As an HMO, we believe in wellness and prevention, and all the statistics (on smoking) were becoming more alarming,” said Wanda Lee, senior vice president of human resources. Don Couch, 32, a computer systems analyst who had been smoking since age 17, took advantage of free quit-smoking classes shortly after joining Pacificare in 1992.

“I’m a lot more focused at work because I’m not worried about when I’m going to have my next cigarette,” Couch said. “I don’t have colds as much as I used to and I haven’t had the flu since I quit smoking.”

Even some smokers say they support workplace tobacco bans.

Mae Sapinoso, a secretary for the Gas Co. who works in the smoke-free First Interstate World Center in downtown Los Angeles, said she doesn’t mind the inconvenience of a long elevator ride from her 50th-floor office to step outside for a cigarette.

“When I’m at my desk, I feel healthier,” said Sapinoso, who was enjoying a cigarette in an outdoor courtyard one recent afternoon. “Even though I’m a smoker, I don’t want to be in a room with a lot of smokers. Before we had a smoking room and it smelled in there.”

Smoking at Work

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More and more companies have banned or placed restrictions on smoking in the workplace. This 1992 suevey shows that the larger the organization, the more likely it is to have an official smoking policy.

Company size (number of employees) & Percent with existing smoking policy: 50-99: 55 100-249: 61 250-749: 66 750+: 74

About 40% of U.S. worksites offer information or activities to help employees quit smoking. Here’s a breakdown of the programs: Distribute posters, brochures, pamphlets and videos: 91 Group classes, workshops, lectures or special events: 56 Individual counseling: 23

Sources: Office of Disease Prevention and Health Promotion; Society for Human Resource Management

Researched by ADAM S. BAUMAN / Los Angeles Times


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