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New Smoking Laws - what employers should do

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Peter Done, Managing Director of Peninsula looks at what employers should be doing in preparation for new smoking laws that come into effect on the 1st July.

Background to the New Smoking Laws

On the 1st July 2007, England will follow the example of Scotland and the Republic of Ireland and bring in legislation on smoking in enclosed public places. The Welsh Assembly introduced similar legislation on 2nd April 2007, and Northern Ireland followed suit on 30th April 2007. With very few exceptions, all workplaces must be smoke free or employers will face prosecution.

The implementation of the Smoke-Free Premises, Places and Vehicles sections of the Health Act 2006 will take effect from 6.00 am. on 1st July 2007, from which time nearly all enclosed public places and an estimated 3.7 million business workplaces (offices, factories, shops, pubs, bars, restaurants, membership clubs, public transport and work vehicles that are used by more than one person) in England will become smoke-free environments. Indoor smoking rooms will no longer be allowed. Work premises and vehicles will be required to display 'No Smoking' signs.

There will be limited exceptions, notably; any premises where a person has his/her home, or is living whether permanently or temporarily (including hotels, care homes, prisons and other places where a person may be detained).

Scotland, Wales and Northern Ireland have already enacted their own equivalent legislation.

Failure to comply with the law will be a criminal offence. Individuals may be fined for smoking in smoke-free premises. The manager in charge could be fined for allowing others to smoke on the premises, or for failing to display adequate no-smoking signs.

If you do not already have a smoke-free workplace, it will take time to prepare your staff, customers and visitors for the change – so you need to start planning sooner rather than later. To communicate the new law and all of its implications it is recommended that organisations develop and implement a written smoking policy.

From 1st July 2007 smoking is to be banned in almost all workplaces and buildings with public access. The issues to be resolved before then are quite limited in scope – employees and employers will not, for example, be able to "opt out" of the Regulations.

Smoking Ban Covers All Indoor Work Space

Smoking is banned in all indoor areas including all work areas, corridors and vending areas, rest areas, canteens, company vehicles, designated smoking rooms or areas, and even outdoor areas adjacent to the workplace (such as entrances to buildings), in fact EVERYWHERE indoors! There is therefore no issue for consultation with employees regarding the ban – it's the law. However, you may need to consult with staff, and even negotiate with them, if the implementation of the ban will affect your current working practices.

For example, if you allow smoke breaks currently, in a designated smoking area indoors what are you going to do about the break after the ban? Are you still going to allow the break(s)? Do you allow your non-smokers the same breaks – if not are your smokers therefore working a shorter day than your non-smokers?

Even if staff currently take their smoke breaks outside, is where they do so far enough away to comply with the new Regulations? And do those "outside" smokers leave an awful mess of butt ends, matches and cigarette packets? In fact do those "outside" smokers present a very pathetic image of your organisation? Is it time to do something about it?

You need to negotiate with staff if you wish to remove the breaks altogether – perhaps by the substitution of additional holidays or increase in pay (either as a one off payment or a small increase to the wage/salary). If you do intend to allow staff to continue to take smoke breaks but now outside you will need to decide:

• if you plan to use an outdoor shelter, check if it complies with the law;

• where would it be located?;

• will it put others at risk?;

• will it create difficulties with the amount of time away from work (especially exiting multi-storey buildings with slow lift facilities?;

• if breaks are going to take longer should you consider altering the start and finish of day times to lengthen the day for the time lost by the longer breaks?;

• would it be a good idea to introduce incentives to encourage smokers to give up smoking altogether?; and

• are there any local services or facilities to encourage smokers to give up that you could tie in with?

Ahead of the 1st July you need to decide your desired position now and, if necessary, negotiate the necessary changes with your staff now. You may wish to re-visit your current policies regarding recruitment now.

Do you wish to adopt a policy of only recruiting non-smokers? Easy in theory, insert "… non-smokers only need apply …" in your adverts. However, it is almost impossible to prove someone is a non-smoker so it might be more effective to state words to the effect, "….. this is a non-smoking organisation, etc …".

Certainly it is much easier to recruit people where they have accepted employment knowing that there will be no breaks for smoking. Thus over a period of time, through natural wastage, all "smoke break entitlement" employee will disappear from the business. If this is not going to be quick enough for you then you will need to adopt a more proactive approach.

Communicating Your Policy

Once the policy has been agreed it needs to be communicated effectively and positively to everyone it affects. In simple and clear language, it should:

• explain why it has been developed – to help create a healthy, safe and comfortable environment;

• acknowledge the right of employees to work in a smoke-free environment;

• say who it applies to – employees or visitors and customers etc.;

• say where it applies – in enclosed spaces or on the whole of your site;

• identify the managers who are responsible for implementing and monitoring the policy;

• say what will happen if someone does not conform to it;

• give the name of someone who can answer questions or problems; and

• state the date of the policy coming into effect

It is important to make sure the policy reaches everyone it is going to affect. 'No Smoking' signs must be put in prominent places, especially in areas where people relax at break times and at points where visitors and customers can easily see them. Some smokers may see a smoking ban as a way to help them quit the habit. You should encourage them as much as possible.

Monitoring and Reviewing Your Policy

Once the policy has been implemented, it needs to be monitored: this will help you to find out how effective it is and to make changes where necessary:

• are people obeying it; and

• are managers 'turning a blind eye'?

Employers need to address the issue of workplace smoking sooner rather than later and ensure that the smoking policy they adopt is effective and satisfies the requirements of the new Act.

Any failure by employers in achieving a smoke free (safe environment) for employees and any other persons affected by the incidence of continued smoking in the workplace will surely result in punitive damages being awarded in the future and possible criminal prosecution for those organisations that do not implement an effective Smoking Policy.

By eliminating exposure to smoke and second-hand smoke, you are actively protecting the health of your staff, leading to a healthier workforce, and also protecting your organisation's interests by avoiding the possibility of future personal injury claims against it, as a direct result of non-smoking employees suffering harm or the long term effects of passive smoking, attributable to being at work.

Posted March 2, 2007