Can landlords, condos ban oxygen users from smoking?

People who use oxygen for medical reasons often smoke as well. (Frequently, smoking is the reason they have respiratory problems that require oxygen.) The problem is that smoking and oxygen are a dangerous combination. Oxygen accelerates fires and can turn a cigarette ember into a serious flame. Even after the oxygen is turned off, gas that has accumulated in a room or on a person’s clothing and hair can trigger a conflagration.

For this reason, many landlords and condominium associations would like to ban smoking in units where someone uses oxygen. But is this legal? The benefits of a ban are obvious: It reduces the likelihood of a fire causing property damage or physical injury to a resident or neighbor, along with possible resulting lawsuits.

In most cases a condo association can probably impose such a ban, although it’s not clear whether this can be accomplished by a vote of the trustees or whether a change in the bylaws is necessary.

It may be trickier for a landlord to impose such a ban. The easiest way is to put such a provision in a lease. However, what if a tenant has already signed a lease without the provision in it? The landlord can wait until the lease renews, but if the landlord feels there is a serious danger, waiting might not be a good option.

Many apartment leases allow the landlord to impose reasonable rules that don’t specifically violate the lease terms, and many also prohibit tenants from engaging in actions that cause a threat of physical harm. So a landlord might be able to rely on these provisions.

A tenant, however, could argue that such a ban amounts to disability discrimination. If the tenant has emphysema or another serious respiratory problem, that could well amount to a disability. And if the tenant is being denied a privilege (smoking at home) that every other tenant has, simply because of his or her disability, that could be discrimination.

The best approach might be to find a reasonable accommodation for the tenant. For instance, there might be a covered area outside where tenants could go to smoke – as long as they don’t bring their oxygen with them.

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