Waive the waiver

March 25, 2007

Here's a notion with which everyone can agree: Employers have an obligation to keep their workplaces safe. And here's a well-established fact to go with it: Exposure to secondhand smoke causes heart disease and lung cancer in nonsmokers (raising the risk by 20 percent to 30 percent, according to the U.S. surgeon general). Taken together, it's hard to see how sparing people from inhaling smoke on the job is anything but logical and justified.

It's frustrating that the slow learners in Annapolis still haven't figured this out. On Friday, the Senate gave preliminary approval to legislation that would ban smoking in bars and restaurants - but with a loophole large enough for the Marlboro Man to squeeze through. Under the new "hardship" waiver, a bar, restaurant, coffee shop or "similar establishment" could be exempted from the ban if it might cause "undue financial hardship" or if there are "any other factors" that might make compliance unreasonable.

That's pretty vague. A House version of the smoking ban also has a hardship clause, but at least that version would leave the decision-making in the hands of the state health secretary, a strong supporter of the ban. The Senate version leaves it up to local health officers. In the case of Baltimore Health Commissioner Dr. Joshua M. Sharfstein, also a ban supporter, that might be reasonable, but officials in other parts of the state may not be so resolute.

Here's another point to remember: What's being debated in the General Assembly is really a matter of closing a loophole in the state's longtime ban on smoking in the workplace. At the vast majority of businesses, it is illegal to light up a cigarette on the job. This proposal would merely give bartenders, waitresses and others the same protection given office workers and retail clerks.

So granting a hardship waiver seems akin to letting employers with an asbestos problem off the hook if they can't afford to remove it. Either something is a workplace health hazard or it isn't. Even if the state were to allow hardship waivers, there would need to be better guarantees so they wouldn't be granted willy-nilly. Nationwide, 17 states have banned smoking in bars and restaurants, and the vast majority offer no exceptions for any financial difficulties incurred no matter how well-documented.

Finally, the last thing the statewide ban should do is to soften local smoking restrictions. That's a point that also ought to be clarified in any waiver provision. It would be a serious setback for public health if tougher smoking bans in places such as Montgomery, Prince George's, Talbot or Howard counties were turned into Swiss cheese by the Senate's more feckless approach.

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