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Publication

title

No Smoking Allowed . Almost

DATE

July 11, 2006

EXPERTISE

Employment and Labour

INTRODUCTION

On May 31, 2006, the Smoke-Free Ontario Act, S.O. 2005, c. 18 (the "Act"), one of the most restrictive pieces of anti-smoking legislation in North America, came into effect. The Act replaces the Smoking in the Workplace Act, imposing several new restrictions that were formerly within the discretion of municipalities.[1] The Act introduces a new general smoking prohibition in enclosed public places and enclosed workplaces that will be enforced by the Ministry of Health Promotion (the "Ministry"). The Act imposes several obligations on employers. In addition, the Act contains a strong anti-reprisal provision prohibiting employers from taking any negative job action against employees who seek to comply with or enforce the Act. The Act contains significant penalty provisions including fines which can be levied against individuals and corporations.

WHAT IS AN ENCLOSED PUBLIC PLACE OR ENCLOSED WORKPLACE?

The Act prohibits smoking in any "enclosed public place" or "enclosed workplace". An enclosed public place is defined as the inside of any place, including vehicles, that is covered by a roof, to which the public is ordinarily invited or permitted access. Smoking is also prohibited in "enclosed workplaces" which is defined as the inside of any place, building, or vehicle, that is covered by a roof that employees work in or simply frequent during the course of their employment. The Regulation of the Act specifically defines "roof" as a physical barrier of any size covering an area, whether temporary or permanent, which is capable of either excluding rain or impeding airflow, or both.

In short, smoking rooms are generally no longer allowable under this Act. However, the Act does provide for exceptions for residential care facilities, psychiatric facilities, hotels, motels and inns as well as facilities for veterans. These "exceptions", however, are subject to significant restrictions. The Act does provide protection for home health care workers, who have a right to request that a person not smoke in their presence while providing health care services.

The Regulation of the Act does provide for "smoking shelters", which may have a roof but no more than two walls. Accordingly, employers should consider whether their "smoking area" or "smoking huts" comply with this legislation. Outdoor smoking areas without a roof appear to be allowed.

EMPLOYER'S OBLIGATIONS

The Act imposes several obligations on employers, including:

ensuring that there is no smoking in an enclosed workplace or area that smoking is prohibited;
giving notice to all employees that smoking is prohibited in the enclosed workplace;
posting specific signs,[2] in sufficient numbers at appropriate locations and at each entrance and exit of the enclosed workplace, to ensure that employees and the public are aware that smoking is prohibited in the enclosed workplace;
ensuring that no ashtrays or similar equipment remain in the enclosed workplace (except vehicles with ashtrays installed by the manufacturer); and
ensuring that any person violating the prohibition does not remain in the enclosed workplace.

The above requirements serve to ensure that not only the individual but also the employer is held responsible in the event that the Ministry finds a continuing violation in an enclosed workplace. The Act gives Ministry-appointed inspectors the ability to enter and inspect workplaces during business hours.

ANTI-REPRISAL PROVISION

The Act prohibits the employer or any person acting on behalf of the employer from taking any of the following actions against an employee because the employee has acted in accordance with or sought enforcement of the Act:

dismissing or threatening to dismiss the employee;
disciplining or suspending the employee, or threatening to do so;
imposing a penalty upon the employee;
intimidating or coercing the employee.

PENALTIES

The Act contains significant penalty provisions that range in the thousands of dollars which can be levied against individuals and corporations.

CONCLUSION

The Smoke-Free Ontario Act presents employers with new responsibilities to ensure that there is no smoking in enclosed workplaces or public places under their control. Employers should post copies of the new signs as required. Employers may want to conduct information sessions with employees, supervisors, managers and others who may be responsible for ensuring that no violations take place. Providing allowable smoking shelters to employees and visiting members of the public may help increase awareness and reduce the possibility of leaving the employer open to significant fines. Finally, it is of the utmost importance to ensure that no disciplinary actions are taken against employees who comply or seek compliance with the Act.

[1]. The Smoke-Free Ontario Act stipulates that any conflict with any by-law or otherwise would resolve in the favour of the more restrictive regulation.

[2]. The prescribed signs may be found at: http://www.mhp.gov.on.ca/english/health/smoke_free/sign_intl.

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault LLP or any member of the firm on the points of law discussed.

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