Although the Nevada Clean Indoor Air Act prohibits tobacco smoking in many public venues, it specifically exempts from its restrictions gaming areas in casinos where minors are not permitted. As a result, casino employees continue to be exposed to secondhand smoke, sometimes referred to as environmental tobacco smoke, or ETS. Secondhand smoke is associated with a wide range of health problems, including stroke, lung cancer, and heart disease. Casino employees who develop health problems as a consequence of the gaming floor’s smoky environment may have questions about their legal rights.
Secondhand smoke and workers’ compensation
To qualify for workers’ compensation benefits for occupational disease, an employee must show that the disease is “incidental to the character of the business and not independent of the relation of the employer and employee.” NRS 617.440(2). In 1992’s Palmer v. Del Webb’s High Sierra, 108 Nev. 673, the Nevada Supreme Court interpreted this requirement to exclude casino workers from receiving workers’ compensation benefits for secondhand smoke-related disease.
In Palmer the court’s rationale was that disease from secondhand smoke is not related to the nature of the job. The court reasoned that “environmental tobacco smoke is not incidental to the character of [bars and casinos],” and therefore diseases arising from it are not covered by the state workers’ comp statute. Id. at 674. It drew a distinction between environmental smoke in a casino and dust in a coal mine. Unlike coal dust, which is “incidental to the character of coal mining (mining coal necessarily creates coal dust), tobacco smoke is not part of the nature or character of a bar or casino business.” Id. at 675.
At least one plaintiff has raised the question of whether the Clean Indoor Air Act could change the Palmer rule. Heng v. Appeals Office of the Nev. Dep’ t of Admin., 2016 Nev. Dist. LEXIS 2829 (Nev. 2d Dist. Ct. 2016). Now that smoking is banned in many places, perhaps the exception for casinos could make secondhand smoke exposure “incidental” to working on the gaming floor. But unless the legislature acts, it seems unlikely that the state Supreme Court will reverse its Palmer decision.
Personal injury suits
A corollary of the Palmer rule is that casino workers must pursue a claim of personal injury if they hope to recover compensation for disease from secondhand smoke. Casino workers elsewhere have sometimes been successful in efforts to pursue personal injury claims against employers for secondhand smoke exposure. In 2010 an Atlantic City casino employee received a $4.5 million settlement for his lung cancer. To be successful, such cases require a careful legal analysis and close examination of facts.
The Occupational Safety and Health Act (OSHA) requires employers to maintain baseline air quality standards. Nicotine is a listed toxic substance under OSHA air quality regulations. 29 CFR 1910.1000, Table Z-1. Failure to comply with these rules, by providing proper ventilation and other appropriate mitigation, could expose a casino to administrative fines and other penalties. Unfortunately, OSHA does not provide a private cause of action for violations of its rules.
Talk to a Las Vegas personal injury lawyer about your options
The attorneys at the law firm of Greenman Goldberg Raby Martinez have served employees in the Las Vegas area for over 45 years. We would be happy to answer your questions about secondhand smoke and your legal options. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.