I work on a remodeling crew. We go into private residences to work. I left work yesterday because of a smoking customer. What are my rights here? Do I have to breath smoke just because of my job? Or does my employer have to provide me with a smoke free wo

My question provides all the details. I have to go into private residences for work. I'm allergic to smoke. What are my rights? What are my employers rights?

1 answer  |  asked Jul 8, 2015 03:46 AM [EST]  |  applies to Ohio

Answers (1)

Michael Fortney
In the 2006 election, Ohio voters passed Issue 5, a statute designed to prevent smoking in public places and places of employment. Issue 5, the Smoke-Free Workplace Act, turned into Section 3794 of the Ohio Revised Code.

ORC § 3794 prohibits smoking in public places and places of employment. A private residence is not a public place. Section 3794 thus applies to you only if the residence in which you work is also a place of employment.

ORC § 3794.01(C) defines "place of employment" as any "enclosed area under the direct or indirect control of an employer that the employer's employees use for work or any other purpose, including but not limited to, offices, meeting rooms, sales, production and storage areas, restrooms, stairways, hallways, warehouses, garages, and vehicles." Using this definition alone, a case could be made that your employer exercises indirect control over the enclosed area when remodeling, making it appear to be a place of employment.

However, ORC § 3794.03(A) specifically states that the Smoke-Free Workplace Act does not regulate private residences unless they operate as a daycare or adult care facility for compensation, or as a business. Thus, it appears that the owner of the residence is entitled to smoke in her home while you and your fellow employees are working in the home.
Although Ohio’s Smoke Free Workplace Act does not protect you from a resident’s smoke, the federal Americans with Disabilities Act and Ohio's Civil Rights Act both require employers to reasonably accommodate a disability. Generally speaking, a disability under these laws means a physical or mental impairment that substantially limits a major life activity. In your case, if your allergies substantially limit your major life function of breathing, you may have a disability that could require your employer to accommodate your inability to work in a room where a resident smokes.

I cannot answer here whether your allergy would qualify you for protection under the disability anti-discrimination laws, or whether your employer would have to accommodate your allergies. Those answers depend on specific facts that we would obtain through an individual consultation in an attorney/client setting. By way of general information, though, Ohio's Civil Rights Act covers employer with four or more employees, while the Americans with Disabilities Act only covers employer who employ 15 or more people.

posted by Michael Fortney  |  Jul 8, 2015 1:10 PM [EST]

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