Workplace protection laws do not entitle an employee to claim a right to work in a smoke-free environment if smoking is allowed at that workplace and if the employer improved the smoke-related situation in recent years, the Higher Labour Court (Landesarbeitsgericht, LAG) Hessen decided on 13 March 2015 (docket no. 3 Sa 1792/12). A different decision may have been taken, if the employee has been able to prove that tobacco fumes affected his health as the LAG held that there was no reason for it to investigate any factual health issues on its own.
In the case at hand, a croupier sued his employer, a casino holding a state concession, to require it not to put his workplace in the smoking area of the casino. The croupier started working at the casino in 1993, when there were no distinct smoking and non-smoking gambling areas. In 2008, the casino separated these areas and ensured by means of a ventilation system that fumes from the smoking area could not reach the non-smoking areas. Since the time of this separation, croupiers were required to work between six and ten hours per week in areas where smoking was permitted, while over the rest of the total 35 weekly working hours, they worked in non-smoking areas. The claimant held that he would suffer from being exposed to tobacco fumes, however he did not specify any health-related issues that would have allowed him to be employed in the non-smoking area only.
The LAG held that while there was a Federal Labour Court (Bundesarbeitsgericht, BAG) decision dated 19 May 2009 (docket no. 9 AZR 241/08) in which the BAG held that an employee of a Berlin casino was entitled to claim a workplace free from tobacco fumes, this decision would not apply to the case at hand where the casino was located in the state of Hesse. Not only did the Berlin casino not offer any smoke-free environment, it also was enforced to protect its employees from tobacco fumes according to a Berlin state regulation.
The equivalent Hesse state regulation does not contain any such provision. Instead, the Hesse Casino Law (Hessisches Spielbankgesetz) excepts casinos with state concessions from the Hesse Non-Smoker Protection Law (Hessisches Nichtraucherschutzgesetz). The only duties to ensure a smoke-free environment would arise from Sec. 5 Workspace Ordinance (Arbeitsstättenverordnung) which states that employers must ensure their employees’ protection from health risks deriving from tobacco fume exposure. Subsection 2 however reduces this duty in cases of publicly accessible workspaces, holding that protective measures are only to be taken to an extent that is enabled by the particular workspace situation.