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  • Question on Residents cigarette breaks in Nursing Home

    I work for a Nursing Home in Massachusetts. The employee handbook states no outdoor activity yet they are making us take the residents of the nursing home out for cigarettes. I don't feel that is fair to someone who doesn't smoke and also it is not fair to a smoker. I never heard of a nursing home stating you have to take the residents out for a cigarette and that it is part of your job, when there are so many non smoking law in Massachusetts. I am not even sure why they allow smoking in the building or around it. When I mentioned this I was told it is part of my job. We are not only taking just one resident they are making us take five residents to one staff member out for cigarettes. If anyone has any information on this or where I can be directed to so I can find out if this is actually legal.
    Last edited by lowe0413; 01-12-2006, 07:51 AM.

  • #2
    I am not aware of any law that says that people who work in nursing homes can't be required to take the residents out of doors for a cigarette. Nor am I aware of any law that requires all nursing homes to be smoke free indoors and out. Phil?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Well, maybe Welcome to MA. The Massachusetts Smoke-Free Workplace Law went into effect on July 5, 2004 (see c.270, sec. 22). The law is long, not surprisingly, so I’ve given you the meat of it here. Unfortunately, I don't think its perfectly clear that an employee can't be required to accompany a smoker outside, although I think the intent of the statute, if litigated would cover that situation.

      There are four issues to this query, and I will try to deal with all four in response to the posted question:
      1. what is prohibited
      2. what is an enclosed space
      3. what is a residence
      4. how does the "nursing home" exception apply

      c.270, sec.22(b)(1) state that "It shall be the responsibility of the employer to provide a smoke free environment for all employees working in an enclosed workplace." It then goes on to define "enclosed spaces" as "a space bounded by walls, with or without windows or fenestrations, continuous from floor to ceiling and enclosed by 1 or more doors, including but not limited to an office, function room or hallway."

      section (b)(2) states that smoking shall be prohibited in workplaces, but this does not include “residences”. Thus if a facility can gain “residence” status, then it’s not a workplace. There is an exception for nursing homes, understandably, because they are people's residence.

      But subsection 9 of the exception (if you can get all the way through it) states that "the nursing home shall make reasonable accommodations for an employee, resident or visitor who does not wish to be exposed to tobacco smoke."

      Here’s the full exception applicable to nursing homes:

      c.270, sec.22(f)
      “(1) A nursing home, licensed pursuant to section 71 of chapter 111 and any acute care substance abuse treatment center under the jurisdiction of the commonwealth, may apply to the local board of health having jurisdiction over the facility for designation of part of the facility as a residence.
      (2) All applications shall designate the residential area of the facility. The residential area shall not contain an employee workspace, such as offices, restrooms or other areas used primarily by employees.
      (3) The entire facility may not be designated as a residence.
      (4) The designated residential area must be for the sole use of permanent residents of the facility. No temporary or short-term resident may reside in the residential portion of the facility.
      (5) All areas in the designated residential area in which smoking is allowed shall be conspicuously designated as smoking areas and be adequately ventilated to prevent the migration of smoke to nonsmoking areas.
      (6) The facility shall provide suitable documentation, acceptable to the local board of health, that the facility is the permanent domicile of the residents residing in that portion of the facility, that information on the hazards of smoking and second hand smoke have been provided to all residences and that smoking cessation aids are available to all residents who use tobacco products.
      (7) The designated residential area shall be in conformance with the smoking restriction requirements of section 72X of chapter 111 and 105 CMR 150.015 (D)(11)(b). All residential areas shall be clearly designated as such and shall not be altered or otherwise changed without the express approval of the local board of health.
      (8) All areas of a nursing home not designated as a residence shall comply with this section.
      (9) The nursing home shall make reasonable accommodations for an employee, resident or visitor who does not wish to be exposed to tobacco smoke.
      (10) Upon compliance with this section, submission of the required documentation and satisfactory inspection, the local board of health shall certify the designated portion of the facility as a residence. The certification shall be valid for 1 year from the date of issuance. No fewer than 30 days before the expiration of the certification, the facility may apply for re-certification. If the local board of health does not renew the certification before its expiration or provide notice that it has found sufficient cause to not recertify the residence portion of the nursing home as such, the certification shall be considered to continue until the time as the local board of health notifies the nursing home of its certification status.”


      Hopefully, that explains the rules for smokefree workplace for nursing homes.
      This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

      This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

      Comment


      • #4
        I am a CNA and i am going to chool to become an lpn i work at a nursinghome in mass and the nursing home is the residents home they can do what they want withon reason if they want to smoke they can smoke most of the residents that cant go out side have something rong with them if a faimly member wants to take them outside they can go ur job is to take care of the resident wich u r doing ur job by takeing them out for a cig!!!!!!!!

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