A co-worker of mine is pregnant. The owner and several other employees smoke but they have an area they can smoke in. The owner does smoke in his office, door closed---windows open at the end of the day. She is complaining of the smoke smell. I, a non-smoker, do know that when a person comes back in to the office they do carry some of that "smell" into the office but there is no smoke coming into her office (I know, I work nearby). As office manager, I bought several air purifyers and even put one right on her desk. Our office also has windows and I will open up the windows to allow fresh air in.

She is going on maternity leave shortly and unfortunately she may not have a job to return to not because of this but because owner is restructuring the company and her position will be eliminated to a sense (she is an accounting assistant, they want a true accountant).

Can she sue the company for the smoking situation? Our company is in NJ and is private and we have approximately 30 employees.

Hello YJ:

She absolutely CAN sue you. Will she win? That's the $64 question. Today, there is no answer to that question. Here, where I live, you can't even smoke in your own toilet!

It sounds as though you attempted to accommodate her. Document it! I also suggest that you document the "need" for the restructuring, and how it's going to be done. I suggest that you update your employee manual (you have one, don't you?), so it clearly spells out that the company IS a smoking company. I suggest you prepare liability release forms and include them in the hiring package. Lastly, I suggest that (if you're sued) you hire the biggest gun you can afford.

excon

PS> I wouldn't be surprised if your hired gun didn't have a dozen more suggestions too.

Many states, including mine recently, have made all indoor smoking virtually illegal except in the privacy of your car or home (and even then some of that is illegal, if you can imagine?). It has to do with the insurance companies being afraid of huge settlements. Since smokers have successfully sued tobacco companies and won, the next wave is the secondhand smoke victims... boy, they are likely to clean up even more from what I have read.

Its all about if someone is forced to breathe smoky air, like a bartender or waitress, as a part of their job or some other legal requirement (like a court-ordered person to an AA meeting, which is why I ended up researching it so much ). Where I live she would have a clearcut case; smoking inside that building is illegal. Your friend just may be the first get the ball rolling for New Jersey to get in line with California, Arizona, Florida and lots of others, etc. I don't know specifically about New Jersey but I thought both NJ and NY were on the list of smoke-free states? The states that will be the last to convert, I hear, are the tobacco belt ones.

She should look into it. Nothing against smokers here, its just a proved fact that second hand smoke is dangerous to the nonsmoker and the legal system is having to take measures on that recognition.

First yes she can, also if she goes out on materity leave and is let go while she is out, you may have issues there due to the Federal Family Leave Act.

I would say your company needs to have their HR department check with their company attorney before doing either of those actions.

If the smoking is outside and not in the building, there is little one can do about the personal "odor" of a smoker unless it is really bad.

Note if she is required to go into the bosses office which is a smoking area, she may be having her rights violated also.

The only truly safe way not to be sued is make your entire building a smoke free place and inforce it

Check the state staue.
Some places it is illegal to smoke within fifty feet of a business.
If this is the case you are in the wrong.
If you do restucture while she is out on maturnity leave think about offering here a severence package.
But make sure she signs something stateing she will not sue the company over the smoking and the dismissal