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SMOKE FREE ONTARIO

The Smoke-Free Ontario Act and its regulations were in effect as of two days ago. There are many provisions but today I am going to attempt provide employers and employees with a guide  to the impact on most workplaces.
 
Employers should make or buy signs that are 10 cm square with a white background and a graphic of the international no smoking symbol. Google the Ontario Ministry of Health promotion and you will eventually find the graphic. Hand drawing your own international symbol is allowed . You could have a competition amongst the employees to see who’s is best. For reasons set out below the winner’s prize cannot be an ashtray. This sign must be placed at “every” entrance and exit of a workplace.
 
Next, the employer must insure that “no ashtrays or similar equipment remain in the enclosed workplace”. There is an exception for vehicles where the manufacturer built in an ashtray but we are not told by the legislation what “similar equipment” to an ashtray might be. Do you need to confiscate the sugar bowl in the coffee room? Is every pop can open to the accusation of being  “similar equipment” to an ashtray? Is it time to say good bye to the long cherished potted plants distributed throughout your offices?
 
Employers have no obligation whatsoever to create a designated smoking area for employees. It might be the preferred solution, however. Installing smoke detectors in all your bathrooms and janitor closets might be a bit of a hassle.
 
If you are going to create a designated smoking area it must, of course, be outside.  It cannot have a roof and it cannot have more than two walls. Further, it should not be in an area worked in or frequented by employees during the course of their employment.
 
This means that it should not be in an area that employees would have to walk through to get somewhere they need to go. It should be a place that only smokers need to go.
 
If an appropriate designated space is set up and righteous non-smokers wander into the smoking area to mock the smokers, smoke can be blown in their face with impunity.
 
My thinking is that in February the smokers are not going to be too thrilled about an “L” shaped enclosure with no roof. In fact, the word ‘enclosure’ hardly applies. They will be sitting in their cars. Now, their car is not a place where employees need to be in the course of their employment but we are left with the question of whether a car has a roof and more than two walls. If the car is not on the employer’s property, it is not the employer’s problem. But if it is in the employer’s parking lot, it has to ask itself the following questions: 
 
If you have a four-door car and all four doors are open and a person is smoking inside, does it have more than two walls? The answer is no, but it has a roof. Let’s add a sun roof to the car. So if the employee is sitting in a car that has all the doors and the sun roof open are we okay? Arguably yes, but the car should be in some remote area of the parking lot where no employees ever have to go in the course of their work. Maybe you could have an area of the parking lot dedicated to the cars of smokers. The righteous mocking smokers referred to above who venture into the area can be backed over with impunity.
 
If anyone gets fined for smoking in a car with all the doors and the sun roof wide open, I am hereby volunteering to defend the first comer for free. I do not guarantee success. I will just defend them because it will be fun. It will be amusing to meet the Ministry of Health inspector who was actually enough of a dweeb to follow somebody out to their car and check to see if all their doors were open.
 
All of this, however, makes me pause to wonder whether you wouldn’t be better off just standing behind that big “L” shaped structure with no roof at the back of the parking lot rather than stinking up your car.
 
Smoking in a company vehicles is prohibited as it is a place that is frequented by employees in the course of their employment. This applies even if you are alone and no one else ever gets in your company vehicle. If you are a smoker, I recommend asking for a company vehicle with a sun roof. If you drive down the highway with all the doors and the sun roof wide open, you are free to smoke. Oops, sorry that is wrong, it is still a vehicle frequented by employees in the course of their work…you. Ok, so ask for a car allowance instead of a car.
 
Once you hit the far side of the bridge at Fort Erie in your company vehicle, you are free to smoke. Dalton McGinty has no jurisdiction in the United States. Not yet anyway.
 
All kidding aside, this new legislation was inevitable and other than bars and restaurants will probably not make much of a difference to most workplaces.
 
Employees should be aware, however, that if they are going to give their smoking boss an ashtray for Christmas, they should mail it to him and never allow it to appear, even wrapped with bows, in the workplace.
 
As published in The Hamilton Spectator, June 3, 2006.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com