Smoking in the Workplace - The cost of time and what is the law?

Posted on 29 October 2012

When out and about in the community at large, signs stating “No smoking” are prolific. “No smoking rules” which cover smoking in public places, such as restaurants, shopping centres, entertainment venues, places of education, hotels and clubs have been place since 2000. Some councils have also outlawed smoking in children’s playgrounds, in outdoor dining areas attached to restaurants and sporting grounds. On July 1 2009 the Public Health (Tobacco) Act 2008 added to the offences relating to smoking stating it is now against the law to smoke in a car when a child under 16 is present in the vehicle. A $250 on the spot fine applies.

Whilst people generally understand the rules attached to smoking in public and why they exist, what are the regulations and requirements relating to smoking in the workplace? Claire Berry of the Workplace Bulletin, claims statistics demonstrate that employees who smoke:

  • On average spends approximately 115 hours a year on unauthorised cigarette breaks.
  • Take at least 5 more sick days annually than their non-smoking colleagues.
  • Have a flow on effect of smoking breaks leading to lower productivity rates which then causes animosity amongst non-smoking employees.

So what are the rights regarding smoking in the workplace and what rules and laws surround this subject. Under the NSW Work Health & Safety Act 2011 a "person with management or control of a workplace" must ensure so far as is reasonably practicable that the workplace is without risks to the health and safety of any person. The WorkCover Authority of NSW, the agency charged with the administration and enforcement of the Act, interprets this to mean that smoking should be banned in the enclosed areas of workplaces.

An employer is required by law to provide a safe and healthy work environment for their employees, clients, customers or visitors to your premises and has the right to designate their workplace as smoke free. There is no legal requirement for employers to provide breaks for employees to smoke and are within their rights to designate set times such as morning or afternoon tea and lunch as acceptable times staff can smoke. The employer needs to strike a balance between their smoking and the non-smoking employees as smoking breaks have been shown in research to lead to a lower level of productivity which does not go unnoticed by those not taking smoking breaks.

The NSW Industrial Relations website recommends ensuring that good policy and procedure exists in the workplace to ensure that both smokers and non-smokers are catered for but that the legal responsibility of provision of a safe and healthy work environment is upheld. It lists the following points to consider when drafting a non-smoking policy:

  • identify the aim of the policy, which is to achieve a workplace free of environmental tobacco smoke when the smoking ban comes into place
  • list the specific areas affected
  • indicate if professional advice about coping without cigarettes and quitting smoking is available and where to get help
  • ensure that new employees are told when applying for a job that the workplace has a non-smoking policy
  • be clear that staff cannot be disciplined when they smoke away from the workplace or during their own time
  • be clear that staff who fail to consider the safety of others at work by not complying with the non-smoking policy may be personally liable to a fine under the Work Health and Safety Act 2011 and the Smoke-free Environment Act 2000
  • emphasise that smokers are not entitled to smoke in the workplace even if staff in a particular area all want to smoke
  • be clear that even those who work in isolation are prohibited from smoking as they are likely to affect others who come into the area or through the airconditioning system
  • specify that designated smoking areas must be outdoors with no possibility of contamination of indoor areas
  • set out the times during which smokers are able to use the designated smoking areas.

Should you require assistance with drafting policies and procedures which meet the legal requirements of your workplace and which will suit the work environment you want to foster, or as an employee who would like to know more about your rights as a smoker or non-smoker, contact Dooley and Associates and speak to one of our experienced legal team about your situation.