Yale Says Thirdhand Tobacco Smoke is Deadly; But You Can Sue; ADA and State Statutes Provide Legal Basis for Relief and/or Damages
Tobacco Smoke Residue Can Be Deadly
WASHINGTON, D.C. (March 5, 2020): Thirdhand tobacco smoke, previously known simply as tobacco smoke residue, can be deadly, especially to infants, toddlers, and others, a new Yale study reports.
Perhaps more importantly, it is possible to sue when exposed to this carcinogenic substance, says law professor John Banzhaf, who pioneered the novel legal theories, and also used it to protect a pregnant employee at Lamar University in Texas.
As the public interest lawyer who began the nonsmokers' rights movement by getting smoking restricted and then banned on airplanes - a movement which has now spread throughout the U.S. and around the world - Banzhaf helped bring the first legal proceeding to successfully ban smoking in the workplace.
He also first established that persons sensitive to secondhand tobacco smoke and its constituents are entitled to special protection under the Federal Rehabilitation Act as well as under the newer Americans With Disabilities Act [ADA], and used both to protect workers in many legal proceedings.
Then, in a remarkable case known as Service v. Union Pac. R.R. Co., a federal court held that the protection also extended beyond secondhand tobacco smoke to thirdhand tobacco smoke.
It also ruled that the employee was entitled to sue under the California Fair Employment and Housing Act (FEHA).
Today, many other state laws provide similar protection, claims Banzhaf.
Employees Can Sue For Damages
Subsequently, Banzhaf says that his mere threat to sue forced Lamar University to agree to protect a pregnant employee from the tobacco smoke residue to which she was exposed when a fellow worker was permitted to take smoke breaks outside, only to return with his clothing reeking of cigarette smoke.
In that case, one of her doctors wrote that she "is so extremely sensitive to chemicals in tobacco smoke that her breathing is adversely affected in the presence of someone who has recently smoked. Her sensitivity is also to the tobacco smoke residue on the person or clothing of a smoker, not just the smoke in the air. Therefore, to protect her health, especially during her pregnancy, she should not be assigned to an office with someone who smokes during the work day."
Another doctor went further, stressing the danger to her unborn child: "Smoking and second hand smoke has known effects on the placenta that carries nourishment to the baby. Therefore, to protect her health and the health of her baby, she should not be assigned to an office with someone who smokes during the workday, even if that person doesn't smoke in that room."
Banzhaf notes that, as the many dangers of thirdhand tobacco smoke become better know, home sellers and even brokers might become liable for failing to warn about the dangers from a previous owner who smoked, just as they may be liable for failing to warn about lead-based paint, radon, etc.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH),
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf