# 115 II-3.6000 III-4.


December 16, 1993

XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX XXXXXXXXXX Dear Ms. XXXXXXXXX: This is in response to your letter to this office regarding respiratory disabilities and the Americans with Disabilities Act (ADA). The 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. 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 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 III regulation at page 35549.) 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 public accommodation is not precluded by the ADA. The statute does not mandate imposition of any restrictions. Furthermore, there is currently no Federal statute that absolutely bans smoking in public buildings. If you believe that you are disabled as defined under the ADA and you can identify a particular facility in 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 the Department of Justice for investigation. Complaints against State or local government facilities should be sent to this office. Complaints against privately owned places of public accommodation should be sent to the Public Access Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 66738, Washington, D.C. 20035-6738. I hope this information has been helpful to you. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosure