Legal Question in Employment Law in Maryland

Re: Can I claim damages due to a hostile work environment?

First, the law is on your side. The Code of Maryland Regulations (called COMAR) prohibits smoking in "enclosed workplaces." This includes private offices. Although designated smoking areas are allowed, they must be separate, with their own ventilation that exhausts to the outside, and may not include locations where an employee is required to work. So the CEO and VP offices do not qualify to be designated smoking areas.

However, it would be difficult to get damages unless you are truly hurt by the smoke. In other words, you would need to have a medical condition such as asthma, emphysema, etc. (Proving second hand smoking damages is extremely difficult, especially since you used to smoke so it would be nearly impossible to separate the damages from your smoking from the damages due to second hand smoke).

Note also that this is not a "hostile environment" case. That applies to discrimination-type cases, such as sexual harassment or race discrimination.

Antway, even if you were hurt, you would likely be limited to a worker's compensation claim. (Injuries at work are limited to WC, which is an exclusive remedy, meaning that you cannot otherwise sue.)

It might also be possible to file a claim with the state or federal OSHA agency, but that leads to the second point - your fear of reprisal.

I think you are right to be concerned about this, especialy since the CEO is involved. It appears he believes he can do as he pleases in his own office, which is incorrect. But he likely won't appreciate being told to stop. Nor will the VP.

From a practical standpoint, then, it may be best to file a confidential complaint with your HR department, your EAP or your legal department, if you have one of those. Tell them that COMAR Title 9, subtitle 12, chapter 23 prohibits smoking in the office and ask them to put a stop to it without implicating or naming you. Do not let them say that they have to name you (or something equally silly like the CEO has the right to confront his accuser - this is not a criminal action)- the smoking is illegal and they do not need to name you in order to put a stop to it.

If they refuse to help, you can file a claim with the MD Department of Labor (Division of Labor and Industry) under the MD Occupational Safety and Health Act (MOSH). Info is available at www.dllr.state.md.us, or call 410.767.2236. Ask them if it is possible to keep your identity confidential.

Good luck.

Jeff Sheldon

Jeffrey L. Sheldon, Esquire

The Sheldon Law Firm

6932 Mayfair Road

Laurel, MD 20707

301.604.2497

fax: 301.776.3954

[email protected]

http://www.SheldonLawFirm.com

Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.