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Smoking in the Workplace and Workers' Compensation

If you are a non-smoker and have become sick because of environmental tobacco smoke at work, you may be entitled to Workers' Compensation benefits. More and more, employees are being awarded Workers' Compensation benefits after they show that environmental tobacco smoke in their work place caused medical problems, or worsened medical conditions that they already had. 

Environmental Tobacco Smoke

Environmental tobacco smoke (ETS), also known as second hand smoke, has become an acknowledged health risk.  Medical experts agree that ETS contains almost all the same toxins and carcinogens that have been identified in smoke inhaled by the smoker, though at less concentrated levels.  Exposure to ETS can cause or aggravate a variety of medical problems similar to those associated with smoking itself.

ETS Exposure as Occupational Illness

For workers' compensation purposes, recovery of benefits based upon exposure to ETS depends upon the circumstance of the situation.  Although each state has specific requirements, a person seeking Workers' Compensation benefits must usually show either an accidental injury or an illness that comes from some aspect of the working environment. To demonstrate an illness covered by Workers' Compensation, an employee must show a disease, caused by the conditions of the workplace, that has some direct connection to on-the-job duties or responsibilities.  For Workers' Compensation purposes, an illness that meets these criteria is known as an occupational disease.

In the past, employees claiming that they had suffered a work-related injury because of ETS were not successful.  Claims of occupational disease failed because exposure to smoke was not considered to have a direct connection to the person's on-the-job responsibilities.  Others did not receive benefits because they failed to show a link between the illness and the ETS or because the employee did not show that the ETS exposure was limited to the work environment.

Recent Trends in ETS Workers' Compensation Claims

More recently, employees have had increased success collecting Workers' Compensation benefits for illnesses caused by exposure to work place ETS. A common sense approach is being used to consider whether or not ETS has caused an accidental injury.   Now, a condition that develops from long-term gradual exposure to second smoke will be considered an accidental injury, because the employee's illness is unexpected.  Moreover, an unventilated, smoky office or work place is an environmental hazard that can create the kind of unusual working condition or event capable of causing an injury for Workers' Compensation purposes.

For claims of occupational disease, concentrated ETS exposure in the work place is now being deemed peculiar or characteristic of the work, and working in such an environment can have a direct connection to job responsibilities. Employees are also having greater success with occupational disease claims because there is a greater understanding of the relationship between ETS and illness in those exposed to it. As a result, the number of states awarding Workers' Compensation benefits for second smoke related injuries continues to grow.

Making a Workers' Compensation Claim for ETS Exposure

The circumstances under which your employer may pay Workers' Compensation benefits because of injuries caused by ETS have expanded.  If you can't work at all, your employer may have to provide Workers' Compensation benefits.  Moreover, if you need a smoke free environment in order to work, your employer faces the choice of accommodating your needs or paying you benefits.  In any case, if your work place contains exposure to ETS and it is making you ill, you may be entitled to receive Workers' Compensation benefits.

Your ability to collect Workers' Compensation benefits because of exposure to second hand smoke will be more likely to succeed if you can show the following:

  • Sensitivity to second hand smoke;
  • Diagnosis of a medical condition known to be caused or aggravated by second hand smoke;
  • Medical confirmation of the relationship between second hand smoke and your illness;
  • Significant exposure to second hand smoke in the work place and/or being forced to share your working daily working environment with smokers; and
  • Minimal ETS exposure outside of work.

Legal Help for Exposure to Smoke in the Workplace

If you have suffered an illness or had a medical condition worsen because of exposure to environmental tobacco smoke at work, you may be entitled to compensation under the workers' compensation laws in your state.  With the growing understanding of the adverse effects of second hand smoke, employees exposed to ETS at work can now look to workers' compensations laws for protection when they become ill.  By carefully assessing the circumstances surrounding your exposure at work, and protecting your legal rights at all steps in the process, a workers' compensation attorney can assist you in receiving all the benefits that workers' compensation laws in your state were designed to provide.

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