“Employers with workplace [anti-]smoking policies, beware! You face the risk of being sued for discrimination against smokers.”
Times have changed dramatically since 2002. That’s when the above quote appeared in the opening lines of a legal column in the 2002 issue of a well known Canadian OHS magazine. At that time, there was a legitimate concern that banning smoking in the workplace was illegal. That’s because a year or so earlier, a BC arbitrator had ruled that smoking was a “disability” under human rights law. As a result of the case, a zinc smelter who had banned smoking in its facility was guilty of discrimination against a person with a disability [Cominco Ltd. v. U.S.W.A., Local 9705].
Four years later, the rules have been turned completely on their head. Today, what’s become illegal is not banning smoking in the workplace but tolerating it. (Caveat: Understand, though, that the issue of smokers’ rights under human rights laws remains unresolved.)
On May 31, smoking in an indoor workplace became illegal in Ontario and Quebec, Canada’s two largest provinces. And, while the ON and QC laws go farther than most of the others, strict restrictions against workplace smoking are in effect in almost every province and territory. This article will explain the employer’s legal obligation to protect workers against second-hand smoke. It will also show you how to tailor your OHS program to meet those obligations.
The Law of Second-Hand Smoke
Smoking has been and, sadly, remains a way of life for many. This may account for why it took so long to get people to acknowledge the harmful effects of second-hand smoke. Today, even tobacco companies admit that:
- Environmental tobacco smoke is laced with poisonous chemicals such as 2-aminoaphthalene and 4-aminobiphenyl;
- Even moderate amounts of exposure to these chemicals can cause serious harm to human health; and
- Ventilation isn’t effective to eliminate these health risks in indoor environments.
Until recently, the OHS laws reflected society’s acceptance of smoking. For example, while the OHS laws require employers to safeguard workers against exposure to hazardous substances, they don’t generally recognize second-hand smoke as one of those substances. When workers complained or refused to work because of second-hand smoke, they were often dismissed as “whiners” or “troublemakers.”
But once second-hand smoke became recognized as a health hazard, legal changes were bound to follow. Sure enough, now companies are under an obligation to ensure that the people who work for them aren’t exposed to second-hand smoke.
The Three Sources of Second-Hand Smoke Protection
Second-hand smoke laws follow a simple scheme: Individuals aren’t allowed to smoke in the workplace; employers are responsible for ensuring that no smoking takes place in their facilities; if illegal smoking does take place, both the smoker and the employer can be penalized. These rules come from three sources:
1. Provincial OHS Laws
Normally, if you want to know what you’re supposed to do to protect the health and safety of your workers, the first place you look is at your province’s OHS laws. But this won’t work with second-hand smoke. Only two jurisdictions specifically cover second-hand smoke in their OHS regulations: BC (in Part 4 of the OHS Regulation) and NT (Env. Tobacco Smoke Work Site Regulations). In the other provinces, there are only general duties to guard against recognized hazards, ventilation requirements for indoor workplaces and other broad duties that could be applied to second-hand smoke.
2. Provincial Smoking Laws
This doesn’t mean that BC and NT are the only places where employers must guard against second-hand smoke. It just means that the obligation must derive from somewhere other than the OHS law. Where? Every province and territory (other than YT) now has a specific law that imposes limits on smoking in public places, including the workplace.
These laws, referred to as Smoke-Free Places, Non-Smokers’ Protection or Tobacco Control Acts (for simplicity’s sake, we’ll refer to these laws collectively as “Smoking Laws”), are typically enforced by the same regulatory agency that enforces the provincial OHS Act. So when OHS inspectors show up at a workplace, they’ll typically check for hazards under both the OHS and Smoking Laws. But in some provinces, most notably Ontario, the Smoking Laws are enforced by or in cooperation with public health authorities.
3. Local Smoking Laws
The other tricky part about complying with workplace smoking laws is that there might be not just provincial but municipal or local smoking regulations to deal with. The municipal restrictions often differ from the Smoking Law of the province. Which law should you follow when the local law is different from the provincial law? Answer: Whichever law poses the stricter requirement.
Example 1: The Nova Scotia Smoke Free Places Act bans smoking in workplaces unless the employer sets aside a designated smoking room with proper ventilation. The NS County of Richmond bans all workplace smoking without allowing for designated smoking rooms. Employers in Richmond County would therefore have to follow the County rather than the provincial rule.
Example 2: The Smoke Free Ontario Act bans smoking in the workplace. Municipal by-laws ban smoking within 10 metres of building entrances. A facility in this municipality would have to comply with both rules and ban smoking indoors and in entryways.
What the Law Requires
The Smoking Laws vary slightly from province to province. But they follow the same general approach. Let’s look at the basic similarities and differences.
1. No Smoking in the Workplace
All of the Smoking Laws proceed from the same starting point—they all ban persons from smoking in the workplace. Let’s look at this more closely:
Where: The ban applies to indoor or enclosed workplaces. It extends to every part of a building including stairways, corridors, lobbies, elevators, cafeterias, washrooms and other indoor places where workers are present when doing their jobs. In other words, unless the employer sets up a designated smoking area or room, there’s no nook or cranny of the building where a worker can go to light up without breaking the law.
Insider Says: Two provinces, AB and ON, include not just the inside of buildings but company vehicles. MB and QC ban smoking in company vehicles carrying two or more persons. NB specifically provides that company vehicles aren’t part of the workplace. The rules regarding vehicles are unclear in the other provinces.
Who: The workplace smoking ban applies not just to a company’s own workers but to any person including contractors and visitors.
Scope of Liability: Some provinces, including MB and QC, specify that violations can result in liability not just against the company but a corporate director or officer who authorizes or allows a violation.
2. Designated Smoking Rooms and Areas
The defining difference among Smoking Laws is whether they allow employers to set aside a designated smoking room or area (which we’ll refer to collectively as a “DSR”).
The 5 No DSR Provinces: Five provinces, MB, NB, ON, QC and SK, don’t allow employers to establish a DSR. So if you’re from ON and currently have a DSR, you need to get rid of it by May 31, 2006, the date the Smoking Law takes effect. If you’re from QC, you have until May 31, 2008 to phase out your DSR.
The 8 DSR Provinces: Eight provinces, AB, BC, NL, NS, NT, NU, PE and the federal jurisdiction, allow—but don’t require—employers to set aside space in the workplace as a DSR where workers can light up. Some jurisdictions, including federal, require the employer to consult with the Joint Health and Safety Committee. DSRs must:
- Be enclosed and structurally separate from other areas where workers work or take breaks. In NT, the DSR must be in an outside structure within three metres of the exit or entrance of the main building.
- Separately ventilated; and
- Clearly marked so that non-smokers don’t inadvertently wander in.
Insider Says: There is no Smoking Law in the Yukon.
3. Employer Obligations
Smoking Laws require owners of buildings where smoking is banned, including workplaces, to police the ban. The rest of this article will show you what these obligations are and how to comply with them.
How to Comply
There are five basic things you must do to comply with the Smoking Laws:
What the Law Requires: You must notify people in the building, including workers, contractors and visitors that smoking is banned or limited to DSRs, as the case may be. This obligation might be implied, as in NB and NL, or spelled out, as in ON. But it’s universal.
How to Comply: a. If you haven’t already, create a clear written smoking policy for your workplace; b. Distribute the policy to workers, supervisors and management—and don’t forget to include new hires; c. If you’re from ON, have each person sign an acknowledgement of having received, read and understood the policy and distribute it to workers and supervisors (You might want to do this even if you’re not from ON); d. Create and distribute a separate smoking policy for contractors and visitors.
What the Law Requires: Ensure that people honor the ban. Most Smoking Laws don’t elaborate on how far employers are supposed to go to do this. But ON specifies that it’s up to the employer to ensure the removal of individuals who refuse to refrain from smoking.
How to Comply: a. Make sure your smoking policy includes a statement like the following:
“Zero Tolerance: ABC Company considers violations of the foregoing smoking restrictions to be a serious offence and reserves the right to impose discipline up to and including termination for any such offences.”
b. Be prepared to discipline workers caught smoking; and c. Require workers to report to management any smoking violations committed by co-workers, contractors or visitors.
3. Get Rid of Ashtrays
What the Law Requires: A number of Smoking Laws require employers to rid the workplace (other than the DSR) of ashtrays and other smoking paraphernalia.
How to Comply: a. Designate one or more person to periodically check the workplace for ashtrays, lighters, etc.; and b. Create a form to be signed, dated and filed each time a check is completed.
4. Post Signs
What the Law Requires: The requirement to post no-smoking signs around the workplace is a standard feature in most Smoking Laws. This is where you need to pay close attention to detail. There are regulations specifying how big signs must be, what they must include, where they must be posted, etc.
How to Comply: a. Get the Smoking Law regulations and see what they say about signage; and b. Go around your workplace to ensure that you have all the signs you need where you need them; and c. Thereafter, make smoking signage one of the things you check as part of workplace safety inspections.
5. Avoid Reprisals
What the Law Requires: You must refrain from firing, disciplining or penalizing a worker for complaining about improper smoking or trying to get the employer to enforce the smoking ban. This might be spelled out in the law or it might simply be implied.
How to Comply: Make sure your smoking policy includes a non-reprisal statement like the following:
“Non-Retaliation: ABC Company is committed to ensuring that the rules set out in this Policy are followed. We also wish to assure you that no Employee will be subject to discipline or suffer any other adverse consequences for reporting improper smoking or otherwise seeking the enforcement of this Policy.”
The days of denying the harmful effects of tobacco and second hand smoke are over. Toleration for smoking, although not completely gone, is also disappearing fast. Society has declared war on smoking. As a safety coordinator, you’ve been enlisted to serve on the front lines. Your responsibility: Patrol the workplace and either keep smoking within tight physical bounds or get rid of it altogether.