An employer owes a duty to the employee to use all reasonable care to provide a reasonably safe workplace and to protect the employee from avoidable perils. Whether the employer has fulfilled its duty depends upon the facts of each case.
Plaintiff employee, a nonsmoker, shared an open office area with other employees, many of whom smoked tobacco products as they worked. Plaintiff began to experience serious respiratory tract discomfort because of inhaling tobacco smoke. Plaintiff sought an injunction to prevent defendant employer from exposing him to tobacco smoke in the workplace and from affecting his pay or employment conditions because of his medical reaction to tobacco smoke. The circuit court granted the defendant’s motion to dismiss the employee’s petition. The appellate court reversed the order.
Could plaintiff employee seek an injunction to prevent defendant employer from exposing him to tobacco in the workplace because of his medical reaction to tobacco smoke?
Plaintiff employee appropriately sought an injunction. Defendant employer knew that tobacco smoke was harmful to plaintiff's health and had reasonable means to control smoking in the workplace. By failing to exercise control and assume responsibility to eliminate the hazardous condition, defendant breached its duty to provide a reasonably safe workplace. The Occupational Safety and Health Act (OSHA), 29 U.S.C.S. §§ 651-678, did not affect the common law regarding injuries arising out of employment or prevent a state court from asserting jurisdiction over an occupational health issue when there was no OSHA standard in effect regarding tobacco smoke.