Relief for exposure to secondhand smoke in the workplace

In February 2015, a workers' compensation judge determined that secondhand smoke in the workplace could be the basis for a compensable workers’ compensation claim. Generally, claims of “occupational exposure” are difficult to prove and are often denied by workers’ compensation attorneys. This is because an essential element of any case brought under New Jersey workers' compensation law is that an injured worker must be able to prove that the occupational disease was caused by exposure at work.

Usually, compensable injuries of this sort result from direct exposure to carcinogens, hazardous fumes, or even hazardous noise levels. But what about secondhand smoke? While most employers do not allow indoor smoking at the workplace today, smoking in the workplace was common practice not so long ago.

Pulejo v. Middlesex County Consumer Affairs

In Pulejo v. Middlesex County Consumer Affairs, Mr. Pulejo was diagnosed with lung cancer, and, as a result of surgical removal of the tumors, was left with only 3/5 of his lungs and restrictive pulmonary disease. Mr. Pulejo had never smoked, had no family members who smoked, and had no family history of lung cancer, so his doctors struggled to figure out the cause of his lung cancer.

Investigation revealed that from 1976 through 1997, Mr. Pulejo worked in close quarters with numerous co-workers who all smoked at their desks, with little to no ventilation. In fact, the closest person to Mr. Pulejo in proximity was a chain smoker. As a result, Mr. Pulejo was exposed to secondhand smoke at his workplace, for four to five hours a day, five days a week, for 19 years.

The Court noted that “[c]igarette smoke contaminates and pollutes the air, creating a health hazard not merely to the smoker but to all those around her who must rely upon the same air supply.” Even the respondent’s expert admitted that “there is certainly some suggestion but no proof” that people exposed to secondhand cigarette smoke have an increased incidence of cancer.” This evidence was enough for the Court to find that Mr. Pulejo had occupational exposure sufficient for his lung cancer to be a compensable, work-related injury.

So what does this ruling mean for a worker who was exposed to secondhand cigarette smoke at work? To weigh the strength of any claim, it’s important to consider:

1. How long was the worker employed and exposed to secondhand smoke;
2. How many hours per day was the worker exposed to secondhand smoke;
3. Did the co-employees and/or clients smoke in close quarters to the worker;
4. Was there any ventilation;
5. Does the worker smoke or have any housemates or immediate family members who smoke;
6. Does the worker have any familial history of lung cancer;
7. Has the worker been exposed to any other carcinogens;
8. Has the worker in fact developed lung cancer?

The more workplace exposure that can be demonstrated (if the worker has been exposed to workplace secondhand cigarette smoke for years, in a close, poorly ventilated environment), together with the fewest alternate exposures or causal explanations (no history of smoking or other smoke exposure, and no family history of lung cancer), the more likely it is cancer would be considered a compensable occupational injury like Mr. Pulejo’s lung cancer.

The Mark Law firm is staffed with dedicated employment attorneys with years of experience in workplace personal injury and workers' compensation claims. If you have been exposed to hazardous conditions on the job, whether presently or over the course of years, a personal injury attorney can help you get compensation for your workplace injury claims. 

Contact the New Jersey attorneys at The Mark Law Firm at 908-626-1001 or visit us at www.newjerseyattorneys.com for a personalized consultation today. Click below to download our FREE guide to whether a New Jersey employment lawyer can help you with your workers' compensation matters, personal injury claims, workplace accommodations, or other employment issues. 

For a comprehensive overview of workers' compensation in New Jersey, see our guide here.