Smoking In The Workplace

Federal, provincial and territorial, regional, and municipal legislation provides Canadian citizens with various levels of protection from cigarette smoke in the workplace.

The Smoke-Free Ontario Act became effective on May 31st, 2006. This recent legislative change highlights the need for employers in all provinces and territories to understand the applicable legislation, and their obligations, with respect to the protection of employees from smoke in the workplace.

THE SMOKE-FREE ONTARIO ACT

In Ontario, an "enclosed workplace" is defined as any place prescribed by the regulations or the inside of any building, structure, vehicle or conveyance that is covered by a roof, frequented by employees during the course of their employment, that is not primarily a private dwelling. Company vehicles and roofed patios are thus considered enclosed workplaces. Employers in Ontario have a variety of obligations with respect to prohibiting smoking in the workplace. They must:

• remove all ashtrays or similar equipment from enclosed workplaces (with an exception for ashtrays installed in vehicles by the manufacturer);
• provide adequate notice that smoking is prohibited;
• conspicuously post 10 by 10 centimetre signs, with the prescribed format, at each entrance and exit of the enclosed workplace, and in sufficient numbers to ensure that both employees and the public are aware that smoking is not permitted;
• ensure that a person who refuses to comply with any of the above does not remain in the enclosed workplace; and
• assist inspectors appointed by the Minister of Health and Long-Term Care.

A person who does not fulfill any of these obligations is subject to a $1,000 fine for the first offence, and a $5,000 fine for subsequent offences. If an employer, or person acting on behalf of an employer, takes any action against an employee because the employee has acted in accordance with the legislation, or has sought enforcement of the legislation, they may be subject to a fine of $4,000 for individuals and $10,000 for corporations.

Proprietors of residential care facilities, psychiatric facilities and facilities for veterans can register enclosed "controlled smoking areas" with the Minister of Health and Long-Term Care, provided the area complies with the Act and Regulations. There are also certain exceptions for scientific research and testing facilities, the use of tobacco in an activity carried out for traditional Aboriginal cultural or spiritual purposes, and designated smoking rooms in hotels, motels and inns.

Alberta's Smoke-free Places Act became effective January 1st, 2006. The Act prohibits smoking in workplaces, with some exceptions, but allows for the designation of a workplace, or part of a workplace, as a place where smoking is permitted (provided that minors are restricted from entering that place). A number of municipalities in Alberta have enacted bylaws that impose stronger restrictions than the provincial legislation, including complete prohibitions on smoking in the workplace.

British Columbia's Occupational Health and Safety Regulation requires employers to prohibit smoking in the workplace, or to restrict smoking to designated smoking areas or by "other equally effective means". Employers who operate certain businesses, such as bars and restaurants, are exempt from the requirements if they provide a separate place for smoking. Employees cannot be required to work in smoking areas. In addition, some municipalities in British Columbia have bylaws that completely prohibit smoking in the workplace.

Revisions to Quebec's Tobacco Act came into force on May 31st, 2006. Quebec's legislation similarly prohibits smoking in enclosed workplaces. Employers are permitted to set up closed smoking rooms for persons who are lodged in the workplace.

Employers should ensure they are in compliance with their obligations under the applicable legislation. The following chart outlines some of the legislation in effect in each province and territory, and at the federal leve

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.