This case involves a matter of first impression in this State: whether a non-smoking employee is denied a safe working environment and entitled to injunctive relief when forced by proximity to smoking employees to involuntarily inhale "second hand" cigarette smoke.
Plaintiff seeks to have cigarette smoking enjoined in the area where she works. She alleges that her employer, defendant N.J. Bell Telephone Co., is causing her to work in an unsafe environment by refusing to enact a ban against smoking in the office where she works. The company allows other employees to smoke while on the job at desks situated in the same work area as that of plaintiff. Plaintiff contends that the passive inhalation of smoke and the gaseous by-products of burning tobacco is deleterious to her health. Therefore her employer, by permitting employees to smoke in the work area, is allowing an unsafe condition to exist. The present action is a suit to enjoin these allegedly unsafe conditions, thereby restoring to plaintiff a healthy environment in which to work.
The attorneys have submitted affidavits in lieu of oral testimony and it has been agreed that I will decide the issue upon submission of briefs by counsel. Plaintiff's affidavit clearly outlines a legitimate grievance based upon a genuine health problem. She is allergic to cigarette smoke. Mere passive inhalation causes a severe allergic reaction which has forced her to leave work physically ill on numerous occasions.
Plaintiff's representations are substantiated by the affidavits of attending physicians who confirm her sensitivity to cigarette
smoke and the negative effect it is having upon her physical well-being. Plaintiff's symptoms evoked by the presence of cigarette smoke include severe throat irritation, nasal irritation sometimes taking the form of nosebleeds, irritation to the eyes which has resulted in corneal abrasion and corneal erosion, headaches, nausea and vomiting. It is important to note that a remission of these symptoms occurs whenever plaintiff remains in a smoke-free environment. Further, it appears that a severe allergic reaction can be triggerd by the presence of as little as one smoker adjacent to plaintiff.
Plaintiff sought to alleviate her intolerable working situation through the use of grievance mechanisms established by collective bargaining between defendant employer and her union. That action, together with other efforts of plaintiff and her physician, resulted in the installation of an exhaust fan in the vicinity of her work area. This attempted solution has proven unsuccessful because the fan was not kept in continuous operation. The other employees complained of cold drafts due to the fan's operation, and compromises involving operation at set intervals have proven ineffective to prevent the onset of plaintiff's symptoms in the presence of smoking co-employees. The pleadings indicate plaintiff has tried every avenue open to her to get relief prior to instituting this action for injunctive relief.
It is clearly the law in this State that an employee has a right to work in a safe environment. An employer is under an affirmative duty to provide a work area that is free from unsafe conditions. McDonald v. Standard Oil Co. , 69 N.J.L. 445 (E. & A. 1903); Burns v. Delaware and Atlantic Tel. and Tel. Co. , 70 N.J.L. 745 (E. & A. 1904); Clayton v Ainsworth , 122 N.J.L. 160 (E. & A. 1939); Davis v. N.J. Zinc Co. , 116 N.J.L. 103 (E. & A. 1936); Canonico v. Celanese Corp. of America , 11 N.J. Super. 445 (App. Div. 1951), certif. den. 7 N.J. 77 (1951). This right to safe and healthful working conditions is protected not only by the duty imposed by common law upon employers,
but has also been the subject of federal legislation. In 1970 Congress enacted the Occupational Safety and Health Act (OSHA) 29 U.S.C.A. § 651-78, which expresses a policy of prevention of occupational hazards. The act authorizes the Secretary of Labor to set mandatory occupational safety and health standards in order to assure safe and healthful working conditions 29 U.S.C.A. § 651. Under the general duty clause, 29 U.S.C.A. § 654(a)(1), Congress imposed upon the employer a duty to eliminate all foreseeable and preventable hazards. Cal. Stevedore & Ballast Co. v. O.S.H.R.C. , 517 F.2d 986, 988 (9 Cir. 1975); Nat'l. Realty & Constr. Co. v. O.S.H.R.C. , 160 U.S. App. D.C. 133, 489 F.2d 1257, 1265-67 (D.C. Cir. 1973). OSHA in no way preempted the field of occupational safety. Specifically, 29 U.S.C.A. § 653(b)(4) recognizes concurrent state power to act either legislatively or judicially under the common law with regard to occupational safety.*fn1
In Canonico v. Celanese Corp. of America, supra , plaintiff was seeking to recover damages for illness allegedly contracted from the inhalation of cellulose acetate dust. The dust was a result of the manufacturing process in which plaintiff was employed. His job location was in the pulverizing room where as much as 400 pounds of dust could be present and circulating in the air in a single day. The court reiterated the common law premise that it is the master's duty to use reasonable care to provide a proper and safe place for the servant to work and that failure to use reasonable diligence to protect the employee from unnecessary risks will cause the employer to be answerable for the damages which ensue. The court upheld the trial judge's dismissal
of the cause of action, emphasizing that cellulose acetate dust is a nontoxic result of the manufacturing process.
Two important distinctions are found between the Canonico decision and the present case. In Canonico the court was presented with a by-product which was a necessary result of the operation of the business. There is no way to pulverize cellulose acetate material without creating dust. The denial of recovery for an occupational disease where the nature of the risk is obvious or known to the employee is based on the theory that the employee assumes the risk as ordinarily incident to his employment. Canonico v. Celanese Corp. of America, supra; Zebrowski v. Warner Sugar Co. , 83 N.J.L. 558 (E. & A. 1912). Plaintiff's complaint arises from the presence of cigarette smoke in the atmosphere of her work environment. Cigarette smoke, unlike cellulose dust, is not a natural by-product of N.J. Bell's business. Plaintiff works in an office. The tools of her trade are pens, pencils, paper, a typewriter and a telephone. There is no necessity to fill the air with tobacco smoke in order to carry on defendant's business, so it cannot be regarded as an occupational hazard which plaintiff has voluntarily assumed in pursuing a career as a secretary.
This case is further distinguishable from Canonico based on the nature of the substance which is being inhaled. In Canonico the trial judge found that the dust was a nontoxic substance. Evidence presented by a medical expert indicated that no one else he had ever seen had suffered disease or illness attributable to the inhalation of cellulose acetate dust. The Appellate Division upheld the trial court's determination that the dust was nontoxic. In the present case the substance being introduced into the air has a far more questionable record. The evidence against tobacco smoke is strong. I shall discuss the evidence presented to me later but note here that the smoke from burning cigarettes is toxic and ...