Ontario targets workplace smoking

Why employers need to pay careful attention to the province’s tough new anti-smoking laws

Ontario employers need to be aware of new legislation that came into effect on May 31. The legislation, the Smoke Free Ontario Act amends certain portions of the Tobacco Control Act, 1994.

The act provides for a strict province-wide uniform prohibition against the smoking of tobacco in any enclosed public place or any enclosed workplace. The situation in Ontario up to now regarding smoking in public places and smoking in workplaces has largely been governed by a patchwork of local municipal bylaws. The new legislation provides uniform rules for all public places, subject to some minor exceptions, and all enclosed workplaces in the province.

As of May 31, 2006, employers are required to ensure smoking does not take place in an “enclosed workplace.” The act defines an “enclosed workplace” as the inside of any place, building or structure or vehicle or conveyance or a part of any of them that is covered by a roof, that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time and that is not primarily a private dwelling.

The act imposes substantial obligations on the part of employers. It provides that every employer shall:

•ensure compliance with the act;

•give notice to each employee in an enclosed workplace that smoking is prohibited in the enclosed workplace in a manner that complies with the regulations;

•post any prescribed signs prohibiting smoking throughout the enclosed workplace in the prescribed manner;

•ensure that no ashtrays or similar equipment remain in the enclosed workplace other than in a vehicle in which the manufacturer has installed an ashtray;

•ensure that a person who refuses to comply with these obligations does not remain in the enclosed workplace; and

•ensure compliance with any other prescribed obligations.

Employers must police the workplace

Effectively what this means is that employers are required to police the workplace to ensure that employees or other individuals do not smoke in any enclosed area.

The act further mandates that the employer give notice to each employee in an enclosed workplace that smoking is prohibited in the enclosed workplace. The act provides that this communication to employees should be given “in a manner that complies with the regulations, if any.” At this point, the regulations passed under the act have not provided a format in which this communication should be given to employees. Unfortunately, this leaves employers with uncertainty as to how to do this.

The surest way to achieve compliance with the regulation would be to provide all employees with formal written notification that, in accordance with new provincial legislation, smoking is prohibited anywhere in the employer’s workplace. This could be accomplished by enclosing a short memo with a pay cheque or pay stub. In situations where this would be administratively difficult, employers may wish to post such notices in a number of conspicuous locations in the workplace. However, it is unclear at this point whether this would meet the requirement of employers to “give notice to each employee.”

Posting no-smoking signs

The regulations to the act include specific requirements about no smoking signs that must be posted throughout enclosed workplaces. Specifically, the regulations provide that an employer post specific designated no smoking signs at each entrance and exit of the enclosed workplace in appropriate locations and in sufficient numbers to ensure that employees and the public are aware that no smoking is permitted in the enclosed workplace. The regulations go on to provide that these no smoking signs shall:

•be 10 centimeters in height and 10 centimeters in width;

•have a white background and display a graphic of the international no-smoking symbol;

•display the Ontario government Trillium logo and Smoke-Free Ontario logo; and

•be in the format shown on the Ministry of Health and Long-Term Care website.

Therefore, not only does the legislation require that employers post no smoking signs, but the legislation specifically requires that employers post the specific sign with the specific contents and in a specific size as set out in the ministry’s website. The required sign is accessible via Internet at: www.mhp.gov.on.ca/english/health/smoke_free/sign_intl. To ensure compliance, employers should simply print off the sign from the website for posting. Finally, the regulations specifically provide that the signs must be posted in a “conspicuous manner and shall not be obstructed from view.”

The legislation requires employers to take other steps to ensure that no smoking occurs in an enclosed workplace. Specifically, an employer is obligated to ensure that no ashtrays or “similar equipment” remain in the enclosed workplace. Of particular significance, the employer also has an obligation to ensure that a person who refuses to comply with the non- smoking rule does not remain in the enclosed workplace. Presumably, an employee who continually refuses to comply with this legislation would be subject to termination for cause.

Act protects employees from reprisals

Employers also need to be aware that the legislation contains anti-reprisal provisions that prohibit an employer from taking any actions against an employee because the employee has acted in accordance with the act or has sought enforcement of the act. Specifically, the act indicates that employers may not dismiss or threaten to dismiss, discipline or suspend or threaten to do so, impose a penalty or intimidate or coerce an employee as a result of the employee’s attempt to have the provisions of the act enforced.

Enforcing the rules

Consistent with all acts that provide this kind of workplace regulation, the province will be appointing inspectors to ensure the requirements of the act are being complied with. Of particular note for employers is the power of inspectors to enter and inspect the workplace without a warrant during a workplace’s regular business hours. Inspectors have broad powers of inspection and investigation under the act and may require employers to produce records or other evidence demonstrating compliance with the requirements of the act. Employers should keep a file demonstrating that they have complied with their notice and posting requirements.

Inspectors also have the power to question a person in the workplace on any matters relevant to the inspection. Employers are obligated to comply with such requests. There is a specific provision in the act that prohibits any person from hindering, obstructing or interfering with an inspector conducting an inspection, refusing to answer questions on matters relevant to the inspection or providing the inspector with information on matters relevant to the inspection that the person knows to be false or misleading.

The act provides fines for non-compliance on the part of both individuals and corporations. For most offences individuals are subject to a maximum fine of $1,000 for a first offence and maximum fine of $5,000 for any subsequent offences. Interestingly, there is no prescribed maximum fine for employer corporations who breach their obligations under the act. There are specific maximum fines for both individuals and corporations who breach the anti-reprisal provisions of the act. Fines for breach of this section are a maximum of $4,000 on the part of individuals and $10,000 on the part of corporations.

Chris Foulon is a partner with Israel Foulon LLP, an employment and labour law firm in Toronto. He can be reached at (416) 640-1550 or [email protected].

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