T.

9/1/94
MAF:NM:rjc
DJ XX

SEP 6 1994
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Dear XX

Your letter to the Department of Health and Human Services

regarding the rights of non-smokers was referred to this office
for reply.

The Americans with Disabilities Act (ADA) authorizes the

Department of Justice to provide technical assistance to entities
that are subject to the Act. This letter provides informal
guidance to assist you in understanding how the ADA may apply to
you. However, this technical assistance does not constitute a
determination by the Department of Justice of your rights or
responsibilities under the ADA and does not constitute a binding
determination by the Department of Justice.

There is currently no Federal statute that absolutely bans

smoking in public buildings. The ADA, however, may protect
certain individuals from being denied access to a program,
service, or activity because of the presence of smoke.

Under the ADA, the Department of Justice declined to state

categorically that allergy or sensitivity to cigarette smoke
should be recognized as a disability because, in order to be
viewed as a disability under the ADA, an impairment must
substantially limit one or more major life activities. An
individual's respiratory or neurological functioning may be so
severely affected by allergies or sensitivity to cigarette smoke
that he or she will be considered disabled. Such an individual
would be entitled to all of the protections afforded by the ADA.
In other cases, however, an individual's sensitivity to smoke or
other environmental elements will not constitute a disability.
If, for instance, an individual's major life activity of
breathing is somewhat, but not substantially, impaired, the
individual is not disabled and is not entitled to the protections
of the statute. Thus, the determination as to whether allergies
or sensitivity to smoke are disabilities covered by the

Records, CRS, Chrono, Milton, Morrow, Friedlander, FOIA

:UDD\Milton\Letter\Smoking.XX

01-03414

-2-

regulation must be made using the same case-by-case analysis that

is applied to all other physical or mental impairments. (See the
enclosed Title II regulation at page 35699.)

Because of the case-by-case nature of the determination, the

Department of Justice ADA regulations do not mandate restrictions
on smoking. It is important to note that section 501(b) of the
statute merely states that the prohibition of, or the imposition
of restrictions on, smoking in places of employment, trans-
portation, and public accommodation is not precluded by the ADA.
The statute does not mandate imposition of any restrictions.

If you believe that you are disabled as defined under the

ADA and you can identify a particular program, service, or
activity from which you are denied access because of the presence
of smoke, you may either file a private suit in Federal court or
send a complaint to this office for investigation.

I hope this information has been helpful to you.

Sincerely,

Merrily Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division

Enclosure

01-03415

(Handwritten)

Tuesday, 24 May, 1994

Ms. Paulette Standefer, Regional Director
Dept. of Health & Human Services
1200 Main Tower Bldg.
Dallas, Tx. 75202

Dear Ms. Standefer:

Could you please help me by informing me
of all recent laws protecting the rights of
non-smokers, especially as they pertain to any
(if at all) rights of the non-smoking incarcerate.
I am a non-smoker & indeed react to
such exposure with red, burning eyes & respir-
atory constriction. I have explained the condi-
tion to everyone here empowered to do anything
about it. Yet, I have been placed in a pod of
50 men, 98% of whom, smoke. I suffer
a constant headache & desperately need
relief.

Thank you for your kind attention & help.

Respectfully,

XX
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01-03416