Smokers vs. nonsmokers: battle over rights at work goes to court

Nonsmokers, who now constitute nearly two-thirds of the American adult population, are becoming increasingly assertive in pursuit of their rights to clean air where they work.

And as far as they are concerned, there are no ''ifs, ands, or butts'' about it.

While the battle is a long way from won, modest gains are being made on several fronts - governmental, corporate, and judicial.

''I think we are on the brink of success,'' says Regina Carlson, executive director of New Jersey's chapter of Group Against Smoke Pollution (GASP).

Particularly crucial, in her opinion, could be the outcome of pending Massachusetts litigation involving a state social worker's fight to rid her work area of cigarette smoke.

Unlike similar suits of its kind elsewhere in recent years, the case is not merely a dispute between a worker and his or her employer, but between fellow employees - a nonsmoker and a smoker - claiming opposite rights.

Describing the expected trial as ''a symbolic battle for all nonsmokers against the tobacco industry,'' Rita Addison, president of Massachusetts GASP, notes that three law firms have been retained by the Tobacco Institute Inc. on the side of the smoker, Judith Caron.

Maintaining that she is addicted to smoking, Ms. Caron argues that a cigarette ban would disrupt her routine and reduce her efficiency.

Marie Lee, the co-worker who brought the suit against the state Department of Public Welfare, contends she is allergic to cigarette smoke, which causes her discomfort and a feeling of ''general malaise.''

Since the office where the two women work, along with some 35 colleagues, is a single room, it is questionable whether the two can be sufficiently separated to provide adequately for the comforts of both. At issue, therefore, is: Should a nonsmoker have the right not to inhale smoke at work, or should a smoker have the right to smoke there?

Citing at least initial victories for nonsmokers in litigation in California, Missouri, and Washington State within the past six months, Nancy Doyle of the American Lung Association says she is cautiously optimistic that future disputes will be settled short of going to court.

She notes that legislation aimed at protecting the nonsmoker at work is on 1983 lawmaker dockets in several states, including Connecticut and New Jersey.

Thus far, Minnesota appears to have the broadest law protecting the rights of nonsmokers. Besides that measure, on the books since 1975, three other states - California, Nebraska, and Utah - have statutes of this type covering public- or private-sector employees. In addition, executive orders having a similar thrust have been issued in Connecticut, Maine, New Jersey, Hawaii, and Kansas.

Nonsmoker-rights activists are especially heartened by what they view as ''increased movement'' by private employers to protect nonsmoking employees.

Athena Mueller, of the Washington, D.C.-based Action on Smoking and Health (ASH), notes that ''there now is quite a body of opinion that smoking is harmful both to smokers and those in their presence.'' She cites a February 1982 report by Surgeon General Everett Koop which suggests that inhaling the cigarette smoke of others could pose a health risk to nonsmokers.

A 1981 study by William L. Weis, a professor of business administration at Seattle University, concludes the average annual cost per smoking worker to employers is $4,611. This includes absences from work, medical care costs, higher fire insurance rates, on-the-job time in worker productivity, and maintenance and cleanup costs.

The problems, as Mrs. Mueller sees it, are particularly great when there is smoking at the workplace and no separate area for nonsmokers.

The American Lung Association is encouraging businesses and private institutions to adopt written policies on nonsmoker rights. One such measure covering Harvard University, for example, provides that the wishes of the nonsmoker must prevail in an area that is designated neither for smoking nor nonsmoking, Miss Doyle explains.

The move to protect the rights of nonsmokers is particularly strong within the business community, according to Mrs. Carlson, who has tracked the more than 50 companies throughout the US which have adopted policies separating nonsmokers from smokers.