T.

11/22/93 DJ XX

JAN 11 1994

XX XX Dallas, Texas XX Dear XX This is in response to your letter to this office regarding the ratification of House Bill 957 by the General Assembly of North Carolina. The Americans with Disabilities Act (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. In considering the reach of the ADA, the Department of Justice has 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 3554.9.)

cc: Records CRS Chrono Friedlander Breen Milton.letterssmoking.you

01-02889

-2Because of the case-by-case nature of the determination, the Department of Justice ADA regulations do not mandate restrictions on smoking. In that regard, it is important to note that even though 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. Because the ADA does not mandate restrictions on smoking, the North Carolina bill about which you are complaining does not, in itself, violate the ADA. However, if the effect of the law is to create barriers to access for a particular individual who is substantially impaired because of his or her sensitivity to cigarette smoke, then there may be a violation of the ADA as regards that individual. For instance, it may be necessary to modify the policy of allowing smoking in a designated smoking area if it affects a particular disabled individual. If you believe that you are disabled as defined under the ADA and you can identify a particular State or local government 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 this office for investigation. I hope this information has been helpful to you. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosure 01-02890