BILL ANALYSIS �
AB 217
Page 1
Date of Hearing: March 30, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 217 (Carter) - As Amended: March 25, 2011
SUBJECT : Workplace smoking prohibition: long-term health care
facilities.
SUMMARY : Modifies an exemption in current law authorizing
smoking in "patient smoking areas" in long-term health care
facilities. Specifically, this bill specifies that the
exemption applies only where all of the following conditions are
met:
1)The patient smoking area is not located in a patient's room.
2)The patient smoking area is located outdoors, in a courtyard
or patio, or other outdoor space that can be monitored by
facility staff.
3)The patient smoking area is located in an area that reasonably
prevents smoke from entering the facility or patient rooms.
EXISTING LAW :
1)Prohibits an employer from knowingly or intentionally
permitting the smoking of tobacco products in an enclosed
space at a place of employment.
2)Provides that a "place of employment" does not include
"patient smoking areas" in long-term health care facilities,
as defined.
FISCAL EFFECT : Unknown
COMMENTS : Current law generally prohibits smoking in places of
employment. However, the law does contain a number of
exemptions. For example, the law exempts (among other things)
smoking areas in hotel lobbies, certain warehouse facilities,
gaming clubs and employee break rooms under certain conditions.
Current law also exempts "patient smoking areas" in long-term
health care facilities.
The author states that this bill will prohibit smoking in
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long-term health care facilities and eliminate dangerous
secondhand tobacco smoke exposure to protect non-smoking
workers, non-facility workers and patients. The author states
that the bill will eliminate the unique fire risk due to oxygen
tanks, flammable chemicals or other combustible items found in
long-term health care facilities.
ARGUMENTS IN SUPPORT :
According to the author, the past twenty-nine Surgeon General's
executive reports have established a long list of health
consequences to tobacco smoke exposure, and have noted that
tobacco use imposes enormous public health and financial cost to
this nation. The 2010 report notes that there is no safe level
of exposure to tobacco smoke and that every year, thousands of
nonsmokers die and thousands of children suffer from respiratory
infections because of exposure to secondhand tobacco smoke.
The author states that in December 2010, outside a California
long-term health care facility, a 67-year-old man died from
burns he suffered when he was smoking a cigarette which he
dropped on his gown and ignited into flames. Moreover, the
Center for Disease Control and fire safety trainings in health
care facilities remind providers that smoking should never be
allowed where oxygen is used or stored. Medical oxygen can
saturate clothing, fabric and hair.
The author also notes that in 2008, the United States Fire
Administration National Fire Data Center reported that in 2003,
thirty-one residents died in nursing homes in four states and
determined that a unique fire risk exist in long-term care
facilities due to the impaired health of residents, the
facility's layout, and types of materials and equipment present.
Therefore, this bill will remove the exemption that allows
patients to smoke inside long-term health care facilities.
The author contends that this bill will (1) save our state
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millions, if not billions, of dollars by taking "appropriate
remedial actions" in eliminating exposure to secondhand smoke;
(2) save lives; and (3) prevent fires by prohibiting lit tobacco
products inside long-term health care facilities that contain
oxygen tanks, flammable chemicals and/or other combustible
items.
This bill will also eliminate secondhand tobacco smoke exposure
in long-term health care facilities to protect non-smoking
workers and patients who are chronically or terminally ill,
patients with chronic obstructive pulmonary disease (COPD),
stroke victims and others who are most vulnerable to
complications from exposure to over 7,000 harmful chemicals
found in tobacco smoke; thus, also protecting families, friends,
children and non-facility workers who visit long-term health
care facilities.
The author contends that New Jersey has enacted legislation
prohibiting smoking in long-term care facilities. In addition,
the author notes that San Bernardino County has enacted an
ordinance which prohibits smoking in private residential units
of licensed child care facilities, licensed homes for the aging
or licensed homes for the chronically ill.
ARGUMENTS IN OPPOSITION :
The California Association of Health Facilities (CAHF) opposes
this bill, expressing concern that it would place skilled
nursing facilities in the position of violating both federal law
and violating residents' rights.
As a preliminary matter, CAHF describes the current situation in
long-term care facilities as follows:
"Typically, the smoking resident will be assessed upon
admission (and quarterly
thereafter) to see if they are able to smoke on their own.
However, they are not allowed to keep smoking materials in
their room. Smoking materials are in a locked drawer/cart
at the nurses' station, and when the resident wants to
smoke, they ask the nurse for their cigarettes and a light.
If the resident requires assistance, facility staff
accompany the resident to the smoking area. If they do not
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need assistance, staff typically monitor the smoking area
when in use by the residents. Most facilities have one or
more staff who are smokers, and they typically assign the
smoking staff members to the duty of taking a resident who
needs assistance out to the designated smoking areas?
?Most facilities have designated smoking areas that are
outside (on a patio). As a result, employees and residents
are not exposed to any substantial amount of secondhand
smoke. The open-air environment ensures residents and
employees do not have a significant risk for cancer or
reproductive harm due to whatever miniscule exposure may
result."
With respect to federal law, CAHF argues that under federal law
a resident has the right of self-determination, regardless or
his or her residence in a long-term care facility. A resident's
autonomy and self-determination are entitled to respect. CAHF
states that, "Smoking can help maintain a sense of stability
while residents transition to life in a long-term health care
facility. Smoking is also a source of comfort in many
residents' lives."
For this reason, CAHF concludes that federal law does not permit
facilities or the state from deterring and/or undermining
residents' ability to make autonomous decisions.
COMMITTEE STAFF COMMENT :
As introduced, this bill would have completely eliminated the
exemption for patient smoking areas in long-term health care
facilities. However, with recent amendments the bill has been
amended to allow for patient smoking areas, as long as they meet
specified conditions (such as being outside). CAHF remains
opposed to this bill over concerns regarding the need for
temporary indoor patient smoking areas, such as during inclement
weather.
RELATED AND PRIOR LEGISLATION :
SB 575 (DeSaulnier) would eliminate most of the exemptions in
the workplace smoking prohibition, including the exemption for
patient smoking areas of long-term health care facilities. SB
575 is pending before the Senate Committee on Labor and
Industrial Relations.
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AB 1467 (DeSaulnier) of 2007 would have eliminated most of the
exemptions, but not the exemption for patient smoking areas of
long-term health care facilities. AB 1467 was vetoed by
Governor Schwarzenegger.
REGISTERED SUPPORT / OPPOSITION :
Support
Coalition for a Tobacco-Free San Bernardino County
Opposition
California Association of Health Facilities
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091