For someone with asthma or any other lung health condition, breathing fresh air in the home is a necessity. While I am not an attorney, I’ve consulted with enough attorneys on this issue to know that the Fair Housing Act and the Americans with Disability Act protect persons with medical conditions exacerbated by secondhand smoke. Smoking is not a legally protected right or behavior. Since smoking is a privilege, and not a right, housing providers can incorporate policies into their leases that restrict smoking much like how they can restrict certain animals from residing in the housing community.
If someone you know with asthma is unable to enjoy the peace and comfort of their home because environmental tobacco smoke is seeping into the unit, here are actions you and your asthma program can take along with your client to help create a smoke-free living environment for them.
1. Talk to the neighbor(s) who smokes in the building.
Let the neighbor know that the secondhand smoke causes your client to have asthma attacks and makes them sick. Here are some tips to keep in mind:
- Make it a priority to be polite during these interactions!
- Emphasize the smoker’s “right to smoke” is not being taken away.
- Make it clear that the person affected has a medical condition that is worsened because of the seepage of secondhand smoke into his or her unit.
- Ask the smoker to smoke outside.
- Take notes on this conversation. Document everything that was said.
2. Encourage your client to start a journal.
Tell your client to document when and where tobacco smoke is evident in the building. This is an important first step in building a case for a smoke-free building.
3. Ask the client’s doctor for documentation of the medical condition.
If the neighbor refuses to stop smoking inside the building and the situation is unresolved, ask your client’s doctor to provide documentation of the client’s medical condition.
- It is usually best to have the physician send a certified letter to the apartment building manager or leasing office.
- The letter should state the person’s medical condition and explain that being exposed to tobacco smoke in their home has exacerbated his or her medical condition.
- Request that a copy of the letter be sent to your client.
4. Meet with the property’s community manager.
Discuss the situation and review the doctor’s letter.
- Make it a priority to be polite while stating the complaint and your client’s desire to live in a smoke-free environment.
- Indicate to the community manager that your client has a medical condition exacerbated by secondhand smoke exposure and that the Fair Housing Act requires housing providers to provide “reasonable accommodation” to those with medical issues.
- Let the manager know that the only reasonable accommodation is to have a smoking restriction that confines smoking to an outside designated area.
- Provide the community manager links to smoke-free housing technical assistance resources and local support organizations.
5. Make a reasonable accommodation request.
If the property’s community manager is unwilling to address the matter, the next step is to send a formal, certified letter asking for “reasonable accommodation.” The property management office must take action at this point, otherwise, your client may be eligible to file a housing discrimination case through the United States Department of Housing and Urban Development (HUD).
Please note that it is the discretion of the housing provider to decide what is considered reasonable, unless the matter is taken to court. If a property’s community manager only offers to relocate someone to another unit or release someone from his or her lease early, that person may want to consider legal advice. Legal Aid Society is a wonderful place to turn to for assistance, as their offices handle Fair Housing complaints for those with low incomes. If the housing provider decides to do nothing, file a housing discrimination complaint through HUD.
If you are interested in learning more about smoke-free housing, please contact your local American Lung Association office, or visit our website: www.lungs.org.
Matthew Competiello
Manager of Health Promotions
American Lung Association in Florida
Find additional information on smoke-free housing in these materials from HUD: Change is in the Air: An Action Guide for Establishing Smoke-Free Public Housing and Multifamily Properties and Smoke-Free Housing: A Toolkit for Residents of Federally Assisted Public and Multifamily Housing.
Further resources on smoke free-housing can be found on the Public Health Law Center’s website: http://publichealthlawcenter.org/topics/tobacco-control/smoke-free-tobacco-free-places.