Interpretation of "Work Space" in the Non-smokers' Health Act - IPG-075

1. Purpose

The purpose of this directive is to provide guidance to determine if the Non-smokers' Health Act (NSHA), applies to outside smoking shelters provided by employers.

2. Issue

On October 25, 2007 the Non-smokers' Health Regulations (NSHR) were amended to prohibit most of the "designated smoking rooms" that were previously permitted under the Act. This change resulted in some employers providing outside smoking shelters, similar to bus shelters, for their employees, and often members of the public, to use.

Given that the NSHA prohibits smoking in any "work space", it must be determined if these smoking shelters are "work spaces" and thereby governed by NSHA.

3. Background

The relevant provisions of the NSHA are as follows (bold added):

2.(1) "work space" means any indoor or other enclosed space in which employees perform the duties of their employment, and includes any adjacent corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by such employees during the course of their employment.

3.(1) Every employer, and any person acting on behalf of an employer, shall ensure that persons refrain from smoking in any work space under the control of the employer.

Therefore if a smoking shelter meets the above definition of "work space", it would be prohibited by the NSHA.

To meet the definition of "work space", the shelter must meet both of the following criteria:

• it must be an indoor or enclosed space; and
• employees must be required to perform the duties of their employment in the space, or to access the space in the course of performing their duties of employment.

A smoking shelter meeting both these criteria, would be a "work space", and thereby prohibited by the NSHA.

4. Enclosed Space Criteria

The "enclosed space" criteria used to define "work space" is difficult to apply since neither the NSHA nor NSHR provide a definition. Although dictionary definitions suggest that "enclosed" means fully surrounded, (i.e. a roof and 4 walls), Provincial statutes such as the Tobacco Control Act Regulation of BC, and the Smoke Free Ontario Act, which use similar terminology, suggest that "enclosed" means anything that is just slightly more closed than it is open (for example a roof and more than 2 walls).

For the purposes of this IPG, the latter interpretation of "enclosed" will be adopted, i.e. enclosed means a space with a roof and more than two walls.

5. Duties of Employment Criteria

The NSHA provides greater clarification of the second criteria of a "work space", i.e. a space, "…[in] which employees perform the duties of their employment…". The NSHA also includes examples of ancillary areas, "…and includes any adjacent corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by such employees during the course of their employment".

Based on the above examples, it is clear that the intent of the NSHA is to ensure that employees are not exposed to tobacco smoke while performing any of the duties of their employment in enclosed areas controlled by their employer, or while accessing any enclosed ancillary areas controlled by their employer, in order to eat, move between floors, or access different areas within a building.

This criteria should be assessed first when determining if an area meets the definition of "work space", since if employees are never required to be in the area as part of their duties, it is not necessary to determine whether or not the area is enclosed.

It must also be remembered that the NSHA does not prohibit smoking on an employer's property in areas that are not "work spaces", and does not prohibit employees from being exposed to tobacco smoke in all circumstances.

6. Conclusion

Therefore, outside smoking shelters provided by the employer, that are not part of any common areas used by employees, and that employees are not required to enter to perform any duties of their employment, are not "work spaces" as defined by the NSHA. Consequently the NSHA does not apply to these shelters, and does not prohibit employees from smoking in these shelters during breaks from their normal duties.

However, such smoking shelters would be considered "work places" as defined by Part II of the Canada Labour Code, and would be subject to the Canada Occupational Health and Safety Regulations. As such, employers still have a duty to ensure the health and safety of employees in the shelters is protected. For this reason it is recommended that shelters not be "enclosed" to ensure they have adequate ventilation. Another advantage of this recommendation is that employees can be assigned to clean non-"enclosed" shelters since they would still not meet the definition of "work space" in the NSHA. In contrast, an employee could only be assigned to clean an "enclosed" shelter when no one was smoking in it, since it would be considered a "work space" for that employee.

In addition, provincial non-smoking statutes may apply, especially if the shelter is accessible by the public.

And finally, when federally regulated employees are in work places not controlled by their employer, they are subject to provincial smoking legislation.