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California employees who suffer from asthma and other respiratory diseases that make them hypersensitive to tobacco smoke might be protected by the California Fair Employment and Housing Act ("FEHA") and entitled to the same protections against discrimination based on medical conditions as other qualifying disabled workers.
In County of Fresno v. Fair Employment and Housing Commission 226 Cal.App.3d 1541 (1991), the Fifth District reiterated that the California disability laws are to be liberally construed and include protections to workers who suffer from a wide range conditions that limit their life activities, which also includes respiratory activities - functions that affect a person's basic ability to breathe. In that case, the employer - County of Fresno - argued that an employee's hypersensitivity to smoke is merely an "environmental limitation" and not a physical handicap. The court rejected that argument, holding that the Tobacco smoke in the environment may simple be an environmental limitation to those who do not suffer from severe respiratory disorders. However, someone who suffers from respiratory disorder and whose ability to breathe is severely limited by tobacco smoke is physically handicapped within the meaning of the Act.
The above findings triggered the employer's obligations to provide reasonable accommodations as required by FEHA. These accommodations may include, according to court, having smokers use desk top air filtration machines, keeping the windows open, separating the desks for smokers and non-smokers, and alike.
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