A state worker filed a claim for workers’ compensation benefits after she was exposed for approximately five weeks to smoke from the pipe of a co-worker. She claimed that the exposure exacerbated her multiple chemical sensitivities condition causing her to suffer from sore throats, difficulty in breathing, headaches and nausea. The Workers’ Compensation Board denied the claim, ruling that Keck had not sustained an accidental injury in the course of her employment. The Appellate Division of the New York Supreme Court affirmed, noting that there was evidence from a physician that Keck’s pulmonary impairment could be explained by her own six-year history of smoking two packs of cigarettes per week.
Keck had also filed a federal lawsuit under the Americans With Disabilities Act (ADA) alleging that she had been unlawfully discriminated against because of a disability, her sensitivity to tobacco smoke. In Keck v. New York State Office of Alcoholism and Substance Abuse Services, 10 F. Supp.2d 194, 1998 U.S. Dist. LEXIS 9778 (N.D.N.Y. 1998), the U.S. District Court (Kahn, J.) granted the defendant’s motion for summary judgment. Keck had argued that a reasonable accommodation to her handicap would be for her to be allowed to work after regular hours and be assured that no persons will be smoking in her work area. The court ruled that Keck “has made no showing that she was discriminated against because of how she was regarded or because of her record of disability,” and that she “failed as a matter of law to demonstrate that her ability to breathe is substantially impaired under the ADA.” Finally, the court ruled that Keck did not prove that she was otherwise qualified to perform the job in question since her proposed “accommodation would require that she be allowed to work on a solitary, unsupervised basis” and that the lack of supervision was not reasonable. See Demare, C., “State Worker Sues for $12 Million over Secondhand Smoke. She Says Supervisors’ Smoking Worsened Her Health and Made Her Unable to Keep Her Job,” Times Union (Albany, NY), November 8, 1994, B5.
675 N.Y.S.2d 400, 1998 N.Y.App.Div. LEXIS 8142.