Workplace Smoking Bans Raise Concerns : Regulation: With more localities imposing controls, questions abound on how far the government should go to ensure employee safety.


Carol Isen, a teacher and tutor of grade school children, is a nonsmoker who says she welcomes the growing nationwide movement toward eliminating smoking in the workplace. However, as someone who works both in the classroom and in private homes, she wonders just how far such restrictions should go.

“I would not tutor in a house where there is smoking, but that’s my personal choice,” the Rockville, Md., resident said. “I don’t believe the government should be legislating homes. I think that’s way too much.”

Her sentiments reflect a growing number of concerns being raised across the country as the federal government and many states, cities and municipalities propose or enact far-reaching restrictions against smoking in the workplace.

While ardent anti-smokers are overjoyed about the changes, businesses--from restaurants to hotels to bowling alleys--fear heavy economic losses if smoking is banned in their establishments. Those fears persist despite early studies indicating no financial hardships actually occur.


But beyond those sharply focused, pragmatic concerns loom larger questions of precisely how to define a workplace and how much government regulation is too much.

Should people whose homes double as places of business--caterers, plumbers, child-care providers, for instance--be required to maintain smoke-free environments? Should a guest be forbidden to smoke in the privacy of his or her hotel room just because a maid comes in to clean?

Furthermore, how difficult will such rules be to enforce--particularly when workers themselves may not be willing to complain about the practices of their colleagues? And who will be responsible for enforcement?

Governments and other institutions are only beginning to come to grips with the issues.


“In most health regulations involving protecting workers from pollution, you can say the pollution is being caused by the company, whereas here, the pollution is also being caused by the workers,” said Dr. Sidney Wolfe, director of the Public Citizen Health Research Group, an advocacy group that has pushed for worker protections against toxic substances.

“In many ways, workplace smoking bans will be daunting to enforce, especially if they involve workers reluctant to rat on their co-workers,” he said.

Numerous state and local jurisdictions have enacted--or are trying to initiate--policies that regulate workplace smoking.

And the federal government, which traditionally has lagged behind the states and cities in this area, has proposed similar work-site bans.


The Labor Department’s Occupational Health and Safety Administration has put forth a proposal to ban smoking in the nation’s work sites, and the Pentagon already has executed such a ban worldwide, affecting 3 million employees.

Furthermore, Congress is deliberating legislation that would prohibit smoking in all public places, including malls, sporting arenas, office buildings and federal, state and local government buildings.

The bill now exempts restaurants, prisons and tobacco shops. But its author, Rep. Henry A. Waxman (D-Los Angeles), chairman of the House Energy and Commerce subcommittee on health, has made it clear that he intends to include “family-style” restaurants in the legislation. The bill has been approved by the subcommittee but has not yet been taken up by the full committee.

Also, California and Maryland recently enacted what are believed to be the toughest workplace smoking bans in the nation.


On July 21, Gov. Pete Wilson signed a sweeping provision that will take effect Jan. 1 unless California voters approve a pro-tobacco initiative, sponsored by Philip Morris Inc., that would substantially weaken it.

The California law exempts private residences, unless they serve as day care centers for children; most hotel rooms, lobbies and banquet halls, as long as no food is being served; bars and card clubs; cabs of trucks; medical facilities doing research on smoking, and theaters and movie sets where smoking is part of the script.

Maryland’s law banning smoking was scheduled to take effect Aug. 1 but was temporarily blocked in the courts. The restrictions include home offices if employees other than the homeowner work there.

Much of the concern in Maryland has been expressed by the hospitality industry, which is worried that the law will be interpreted to include hotel rooms, where maids do their work.


The proposals with the potential for the greatest impact are those pending at the federal level, but they could take the longest time to implement.

Without weakening amendments, passage of Waxman’s legislation could be difficult, and it could be many years before the OSHA rules take effect.

Furthermore, OSHA has yet to tackle some of the tougher questions surrounding its proposal, such as defining the workplace, but the agency “has the flexibility and capability” of doing it “carefully enough so as to hit all the traditional workplaces without infringing on what is typically thought of as an individual’s private space,” said Matthew Myers, an attorney who represents the anti-smoking Coalition on Smoking OR Health.

OSHA could choose to define a workplace by the number of employees, for example, or by the amount of time spent working there, said Myers, whose coalition represents the American Cancer Society, the American Heart Assn. and the American Lung Assn.


OSHA traditionally has treated small businesses differently from large ones, and its rules have not in the past “been construed to include peoples’ homes,” Wolfe said.

And, Myers said, “the agency has the ability to define this quite carefully and precisely, even though they haven’t done it yet.”

OSHA officials refused to discuss the proposals during its rule-making process. The period for public comment on the proposal ends Saturday and will be followed by a series of public hearings in the fall.

After that, OSHA is expected to propose more detailed final rules. Under the swiftest scenario, it could be three years or more before the rules take effect--and they almost certainly will face legal challenges from the tobacco industry, likely causing further delays.


In the meantime, states, cities and even individual businesses may get there first.

“We knew it was certainly a risk, but we’re living proof that it hasn’t hurt our business,” said Sarah Goldsmith, a spokeswoman for California Pizza Kitchen, which three years ago instituted a no-smoking policy for the restaurants in its nationwide chain.

“We wanted to offer a smoke-free environment as much to our workers as to our patrons,” Goldsmith said.

California Pizza Kitchen is believed to be the first restaurant chain to impose such a ban. In the past year, several others, mostly fast-food outlets, have followed.


California Pizza Kitchen, which has bars in many of its restaurants, has experienced no economic hardship as a result of the policy, she said. Indeed, on a recent weeknight in Washington, there was a minimum 40-minute wait for a table. “We’ve had a very positive response to the policy, and our sales continue to increase,” she said.

Goldsmith’s view is supported by at least one recent study.

The research, conducted by Stanton A. Glantz and Lisa R. A. Smith of the Institute for Health Policy Studies at UC San Francisco, analyzed sales tax data from 15 cities in California and Colorado with smoke-free ordinances and compared the statistics to those in cities of similar income, population and smoking prevalence that did not have bans.

They found that restaurant business had not suffered as a result of the ordinances. The work was published in the July issue of the American Journal of Public Health.


Despite the growing pains of instituting such policies, many experts say they believe that the momentum cannot be stopped.

Regardless of the stumbling blocks, “we, as a nation, are moving in the direction of . . .protecting nonsmokers in the workplace,” Myers said. “The only real question is how long it will take.”