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Can you ban smoking at work?

Should you provide a designated smoking area for smokers in your workforce?
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Can you ban smoking at work?

Can you ban smoking at work?

18 November 2019

By now we have almost all got to the stage of being a bit shocked when we see people in movies or TV series set in the 1980s or earlier smoking indoors, at work. The social acceptability of smoking has plummeted steeply in the last few decades, and not surprisingly, the proportion of the population who smoke has seen a similar decline, from about 28% in 1990 to under 14% by 2018.

This is good news for everyone, as tobacco smoking is one of the largest preventable causes of death and disease, with smoking estimated to kill almost 19,000 Australians a year and responsible for about 9% of illness. It is associated with an increased risk of heart disease, diabetes, stroke, cancer, renal disease, eye disease and respiratory conditions such as asthma, emphysema and bronchitis.

Nevertheless, many working people still smoke, and a not-inconsiderable number have turned to ‘vaping’ – smoking e-cigarettes – in the belief these are safer, or will be an intermediate stage in giving up smoking altogether. This raises some issues for employers: if there are smokers in your workforce, should you provide a designated smoking area for them? And with employees who prefer to ‘vape’, is this OK indoors?

The answer to this second question is a definite ‘No’. Even before the recent spate of news items about deaths attributed to vaping, it was understood that many e-cigarettes labelled as ‘nicotine-free’ do in fact contain nicotine, and they may also contain other toxic chemicals.

Indoor smoking bans have been extended to include e-cigarettes across Australia, and the National Health and Medical Research Council has released a statement on e-cigarettes noting that there is not enough evidence to support claims that e-cigarettes are safe, or to recommend them as a product to help smokers quit. The Therapeutic Goods Administration has taken the same position – it has not approved e-cigarettes as an aid giving up smoking.

Vaping is permitted, however, where smoking is not banned.

Where do smoking bans apply?

Smoking is generally banned in enclosed areas of workplaces (though there are some exceptions, such as high-roller rooms at a casino, migration detention centres and places of business occupied by a sole operator and not for the use of the public). ‘Enclosed’ means an area, room or premises that is substantially enclosed by a roof and walls, regardless of whether the roof or walls or any part of them are permanent, temporary, open or closed.

The laws regulating workplace smoking are state-based, so there are variations between jurisdictions, but in some states smoking is also banned at patrolled beaches, near outdoor children’s playground equipment, at skate parks, sporting venues during organised under-age sporting events, and outdoor areas within public swimming pool complexes. It is also generally banned within the grounds of, and within four metres of entrances to, childcare centres, kindergartens, preschools, primary and secondary schools.

Smoking prohibitions may also apply within four metres of the entrances to children’s indoor play centres, public hospitals and registered community health centres, and certain government buildings.

There is no legal requirement for employers to provide designated smoking areas, but personnel who have not yet quit may be asked to smoke only in outdoor areas that are not substantially enclosed by a roof and walls and are at least four metres from any door or window into which smoke could drift.

Ideally, employers should provide encouragement and support for workers to give up smoking, for their own sakes and also because smokers typically take more sick days than non-smokers, and they tend to have poorer than average work performance and productivity, according to studies.

It is increasingly common to see job advertisements specifying that applicants for the position must be non-smoking. On the face of it, this would not appear to be illegal, as smoking is not explicitly protected by anti-discrimination legislation. However, it remains to be seen whether smoking could be successfully characterised (in court) as a disability or an impairment – so employers should be cautious about excluding smokers from recruitment opportunities.

By Gaby Grammeno

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