Help Wanted: Smokers vs. nurses

A nonsmoking nurse working in a nursing home

A nonsmoking nurse working in a nursing home wants to know: Can our employer legally make us accompany patients while they smoke outside? (Credit: iStock)

Carrie Mason-Draffen

Newsday columnist Carrie Mason Draffen Carrie Mason-Draffen

Mason-Draffen, a business reporter, writes a column about workplace issues.

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DEAR CARRIE: I am a nurse, and I work in a nursing home. Can our employer legally make us accompany patients while they smoke outside? The task falls largely to the nurses' aides, who are mostly nonsmokers. I am, too, and when the office is short of help I have to go outside with patients as well. To make matters worse, we sometimes have to light their cigarettes. The area where they smoke is a small patio, and it's hard to escape the smoke. Do we have any legal recourse? -- Smoky No's?

DEAR SMOKY: I'm with you on this one. Though I believe in respecting smokers' rights, I want the right to avoid their secondhand smoke. But for a legal look at what is always an emotionally charged issue, I turned to an employment attorney, who points out some interesting exceptions for nursing homes.

Workplace smoking bans are common in nearly every industry because of the passage of state and local "clean indoor air" statutes and because of a growing awareness of the ill effects of secondhand smoke, said Carmelo Grimaldi, a partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola. But it's different for nursing homes.

"Unlike other workplaces such as restaurants, smoking bans at nursing homes involve a balance between the rights of employees to work in a smoke-free environment and the rights of residents/patients who live at these facilities," he said.

And he cites the New York State Clean Indoor Air Act, as an example.

"While this statute prohibits smoking in virtually all workplaces with some exceptions, residential health care facilities, such as nursing homes, may designate smoking rooms for adult patients," Grimaldi said.

He said the state patients-rights aspect of the law is in line with the federal emphasis on residents' rights. And he said that acknowledging those rights is important because employers could face violations and fines.

"Your nursing home employer is acting prudently by directing its staff to accompany and assist those patients in need of such help," Grimaldi said.

He cited a 2008 case in which a North Carolina nursing home received a substantial federal penalty when it failed to take "reasonable" steps to prevent several accidents involving its residents who smoked. The accidents included a resident who burned himself using a lighter, he said.

It would be preferable to select employees who might be willing to do this type of work or to offer surgical masks to those who object, he said.

"But your nursing home employer is not obligated to do so absent an employee disability-related reason," Grimaldi said.

Finally, he said that in a unionized setting, employees may have additional rights under a collective-bargaining agreement.

You didn't indicate that you were unionized. So I think your best bet is to try to prevail upon your employer to hand off the task to smokers or to provide you and your co-workers with surgical masks.

DEAR CARRIE: When I work 80 hours a pay period -- every two weeks -- is my company obligated to give me holiday and sick pay? -- PTO MIA

DEAR PTO MIA: Labor laws don't mandate such benefits. So companies can determine whether to offer them. And many companies do either because they want to attract and retain talented employees or because a union contract calls for it.

For more on the state Clean Indoor Air Act and smoking in workplaces, go to http://www.health.ny.gov/publications/3402/

For more on state laws and paid time off, go to http://bit.ly/AkPTqT