It could happen, as an anti-smoking organization earlier this month won the second round in its lawsuit against OSHA over the issue of smoking in the workplace. Specifically, the U.S. Court of Appeals ordered OSHA to provide it with a timetable for concluding a rulemaking proceeding to ban smoking in virtually all workplaces. OSHA must respond by December 13. The rule includes all offices, stores, shopping malls, restaurants and even bars.

The lawsuit by Action on Smoking and Health (ASH) argued that OSHA unreasonably delayed in acting to protect American workers from secondhand tobacco smoke, and in adopting a rule it proposed in 1994 to ban smoking in virtually all U.S. workplaces.

The unanimous court order comes four months after the court refused OSHA's request that ASH's legal action be dismissed and ordered the agency to respond to ASH's allegations of unlawful delay and needless deaths.

When OSHA originally proposed the workplace smoking ban rule more than six years ago - in response to an earlier lawsuit by ASH - it estimated that the rule would save almost 8,000 lives a year. OSHA allowed the issue to become dormant because of heavy opposition to it. Most states do not currently prohibit smoking in workplaces.

OSHA also argued that banning restaurant smoking might not be feasible. But ASH noted to the court that California, Maryland and a number of other states and localities have successfully banned smoking in restaurants.

ASH's lawsuit sought to require OSHA to act on its proposed rule within 90 days of the court's order. It appears the court will review the timetable OSHA is now being required to prepare before deciding if and when to order OSHA to act on its rule to ban workplace smoking.