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9/1/94 MAF:NM:rjc DJ XX SEP 6 1994 XX XX XX XX XX Dear XX Your letter to the Department of Health and Human Services regarding the rights of non-smokers was referred to this office for reply. 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. There is currently no Federal statute that absolutely bans smoking in public buildings. The ADA, however, may protect certain individuals from being denied access to a program, service, or activity because of the presence of smoke. 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 Records, CRS, Chrono, Milton, Morrow, Friedlander, FOIA :UDD\Milton\Letter\Smoking.XX 01-03414 -2regulation must be made using the same case-by-case analysis that is applied to all other physical or mental impairments. (See the enclosed Title II regulation at page 35699.) 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 employment, transportation, and public accommodation is not precluded by the ADA. The statute does not mandate imposition of any restrictions. If you believe that you are disabled as defined under the ADA and you can identify a particular program, service, or activity from 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, Merrily Friedlander Acting Chief Coordination and Review Section Civil Rights Division Enclosure 01-03415 (Handwritten) Tuesday, 24 May, 1994

Ms. Paulette Standefer, Regional Director Dept. of Health & Human Services 1200 Main Tower Bldg. Dallas, Tx. 75202 Dear Ms. Standefer: Could you please help me by informing me of all recent laws protecting the rights of non-smokers, especially as they pertain to any (if at all) rights of the non-smoking incarcerate. I am a non-smoker & indeed react to such exposure with red, burning eyes & respiratory constriction. I have explained the condition to everyone here empowered to do anything about it. Yet, I have been placed in a pod of 50 men, 98% of whom, smoke. I suffer a constant headache & desperately need relief. Thank you for your kind attention & help. Respectfully, XX XX XX XX XX XX 01-03416