Employment Essentials: Smoking & E-Cigarettes in the Workplace

Employment

Essentials

Smoking and e-cigarettes in the workplace.

@the_fpb Forumofprivatebusiness Forum of Private Business @forumofprivatebusiness

EESEC 07/2019

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Notes

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Smoking and e-cigarettes in the workplace Smoke Free legislation was introduced into the UK in 2006 and 2007. Local authorities were responsible for enforcing the legislation, banning smoking in nearly all enclosed workplaces and public spaces. The ban was made illegal to smoke in: • Scotland 26th March 2006 • Wales 2nd April 2007 • Northern Ireland 30 April 2007 • England 1st July 2007 This was a massive step forward to support public health.

Anyone who controls or manages such premises is required to take reasonable precautions to ensure that staff, customers and visitors do not smoke.

Although e-cigarettes are not within the scope of smoke free legislation, it is considered best practice to restrict their use in the workplace.

This guide explains the law relating to smoking in the workplace. It also explains what should be included in employers’ smoking and e-cigarette policies.

Smoking and the law It is illegal to smoke in “wholly or substantially enclosed” premises of the following types: • Premises to which the public or a section of the public has access.

• Premises that are being used wholly or mainly as a place of work.

• Premises that are being used by, and for the purposes of, a club or other unincorporated association.

• Premises that are being used wholly or mainly for the provision of education, health or care services.

The legislation also prohibits smoking in work vehicles that more than one person uses.

This includes, for example: • Taxis.

• Buses.

• Goods vehicles and company cars used by more than one member of staff.

People in control of premises or vehicles that are subject to the smoking ban must take all reasonable precautions to prevent smoking. These precautions must include displaying ‘no smoking’ signs.

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The laws that introduce these requirements are the Health Act 2006, the Smoking, Health and Social Care (Scotland) Act 2005, the Smoking (Northern Ireland) Order 2006, the Smoke-free (Premises and Enforcement) Regulations 2006 and the Smoke-free (Exemptions and Vehicles) Regulations 2007.

Exemptions There are some exemptions to the smoking ban, which mainly relate to workplaces that are also places where people are living.

For example: • Hotels, residential homes and hospices are permitted to allow guests and residents to smoke in designated rooms. However, strict conditions apply to ensure that the rooms are well ventilated and smoke does not get into other rooms.

• The law does not prevent homeowners from smoking in the presence of tradespeople carrying out maintenance and alterations, cleaning or personal care work in domestic premises. However, employers still have a legal duty of care in these situations to ensure that anyone who works for them is protected from passive smoking (for example by requiring homeowners not to smoke while work is carried out).

Enforcement Failure to comply with smoke free legislation can result in a fixed penalty of up to £200 (£50 in Scotland) for the person found smoking. The person in control of the premises could also be fined up to £2,500 if they do not stop people smoking or up to £1,000 for failing to display ‘no smoking’ signs.

The law doesn’t apply to e-cigarettes.

Implementing a ‘no smoking’ policy Employers should have a ‘no smoking’ policy to ensure that staff understand the measures they have put in place to comply with the legislation, and what will happen if a member of staff breaches the law. The policy should include: • Reference to the legislation and why smoking in the workplace is banned.

• Confirmation that the policy relates to all staff.

• Identification of any outside areas where staff can smoke.

• The time that is allowed for staff smoking breaks.

• Details of any support that the employer provides for staff who wish to stop smoking.

• Procedures for dealing with non-compliance.

Employers should regularly monitor the effectiveness of the policy and make any changes that are appropriate.

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E-cigarettes and vaping in the workplace E-cigarettes, personal vaporizers (PVs), and electronic nicotine delivery systems (ENDS) are battery operated devices that mimic tobacco smoking and are often used as a replacement for cigarettes. They produce a vapour, including flavoured aromas either with or without nicotine.

Because the safety of e-cigarettes has not been proved, employers who permit their use in the workplace risk being in breach of their legal duty under health and safety legislation to protect staff from exposure to harmful substances.

Employers should decide whether to allow employees to use e-cigarettes, and similar products, in the workplace or ban them as they would ordinary smoking implements.

Supporting employees to stop smoking Giving up smoking is difficult and employees often need support to succeed, employers can help by signposting them to appropriate help and support. This could either be through an internal occupational health service or through the NHS smoke free service.

Many employers prohibit the use of e-cigarettes in any indoor workplace. Before introducing new restrictions, employers should consult with staff or their representatives and assess how the rules will affect them.

Key points • E-cigarettes fall outside the scope of smoke free legislation as the act of smoking requires a substance to be burnt. Therefore whether to allow employees to use them at work or not is up to their employer • Some employees use e-cigarettes as part of a plan to stop smoking, so employers may want to support their use if this is the case • The vapour from e-cigarettes might be annoying to some employees in the workplace • Some e-cigarettes look very similar to real cigarettes so employees or customers may think that real cigarettes are being smoked in the workplace • If smoking e-cigarettes is allowed at work, line managers should be aware of who may be using them within their teams. It is best to make it a rule that line management approval is needed to use e-cigarettes in the workplace • Preventing the use of e-cigarettes at work could make it harder for those who use them to stop smoking, particularly if they are required to smoke them in designated smoking areas together with cigarette smokers. Employers may want to consider organising a separate vaping areas in or near the workplace.

Rules and policies Employers should be clear about what their rules on the use of e-cigarettes at work are.

If they have a policy on smoking or one on drugs and alcohol then they could include a paragraph about e-cigarettes and vaping in there.

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When introducing new rules, employers should first consult with any recognised union or elected representatives, and they should speak with all employees to make sure they understand what the new rules mean and that they apply to them.

Where vaping is restricted, employers may want to put up signs or notices in the workplace which make it clear where it is allowed and where it is banned. These should include any rules that relate to the use of e-cigarettes at work.

Smoking and vaping areas Smoking is forbidden within workplace premises; however organisations can make certain areas available at work to be smoking areas. They do not have to provide a smoking shelter but if they do it must comply with the legal requirements and further information about this can be found at the below websites.

Smokefree England - www.smokefreeengland.co.uk Clearing The Air Scotland Smoking Ban Wales - www.clearingtheairscotland.com Space to Breathe for Northern Ireland - www.spacetobreathe.org.uk Smoking in public places and the workplace is dealt with as a public health matter within Great Britain. The Department of Health takes the lead on this in England, in Wales this is a matter for the Welsh Assembly Government and in Scotland it is the responsibility of the Scottish Government.

An employer could allow staff to vape in the workplace, but should consider the needs of the business and the wider workforce. Where restrictions are placed on vaping, an employer should create a vaping area.

Employers should make clear to all staff where they may or may not smoke or vape at work.

Smoking and vaping breaks Staff who smoke or vape should try to maintain the same amount of break time as colleagues who do not smoke. However employers may also wish to consider setting out rules about smoking or vaping breaks, including: • How many can be taken • How long the break may last • Any requirements about covering the work whilst on a break The risks of non-compliance: • It should be made clear in the rules that any unauthorised or excessive taking of breaks could result in disciplinary action.

• It should be made clear that vaping in a prohibited area at work will result in disciplinary action.

• Employees should be reminded that it is a criminal offence which will attract a fine to smoke in a designated smoke free public area.

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Health and Safety and Smoke Free Legislation – Health and Safety Executive The HSE is not responsible for enforcing smoke free legislation, however, HSE inspectors will bring matters of concern to the attention of an employer, particularly if it involves a number of smokers or if there is failure to display warning notices.

If an employer resists on advice given by an HSE inspector they will then bring the matter to the attention of the appropriate local authority. Any complaints received by HSE about the smoking ban will be referred to the appropriate local authority.

In premises permitted exemptions under the smoke-free law, health and safety legislation will continue to require employers to reduce the risk to the health and safety of their employees from second-hand smoking to as low a level as is reasonably practicable, and to encourage employers to adopt smoking policies in the workplace which give precedence to the wishes of non-smokers not to be exposed to secondhand smoking.

Even though smoke-free legislation is in place, HSE’s advice on protecting employees from the effects of second-hand smoke remains unchanged in that: • Employers should have a specific policy on smoking in the workplace.

• Smoking policy should give priority to the needs of non-smokers who do not wish to breathe tobacco smoke.

• Employers should consult their employees and their representatives on the appropriate smoking policy to suit their particular workplace.

England From 1st July 2007, all public places and workplaces became smoke-free in England, with the exception of a limited number of exemptions under the Smoke-free (Premises and Enforcement) Regulations 2006. The Department of Health can be contacted at: The Department of Health Richmond House 79 Whitehall London SW1A 2NS Tel. 020 7210 4850

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Wales The Health Act 2006 devolves regulation-making powers on this issue to the Welsh Government. The Smoke Free Premises etc. (Wales) Regulations 2007 came into force on 2 April 2007. There are very few exemptions to the smoking ban and anyone who breaches the law could face heavy penalties. Employers, managers and those in control of premises need to display no-smoking notices and take reasonable steps to ensure that staff, customers, members and visitors are aware of the smoking ban and do not smoke in buildings.

Further information on legislation, guidance and signage is available on the website.

Alternatively, the Welsh Government can be contacted at: The Welsh Government Cathays Park Cardiff CF10 3NQ Tel: 0300 060 3300

Scotland On 26 March 2006 the law on smoking in Scotland changed. Under the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 public places and workplaces became smoke-free, with the exception of a limited number of exemptions. Vehicles used for business purposes are also affected by the new law. These include light and heavy goods vehicles and public transport such as taxis, buses, trains and ferries. All cars, however, are exempt.

Scottish Government Health Directorates Tobacco Control Division 3EN St Andrew’s House Edinburgh EH1 3DG Tel: 0131 244 2619

Electronic cigarettes HSE does not enforce legislation or standards for e-cigarettes.

E-cigarettes are not regulated like tobacco products and there is currently no bespoke regulatory system for e-cigarettes in the UK, but they are captured by general product safety regulatory requirements.

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HSE’s advice is that an employer needs to consider e-cigarettes in the wider context of risk in the workplace. HSE are aware that some organisations have banned their use but this is not something HSE has advised on.

If an employer decides to ‘prohibit’ the use of e-cigarettes in the workplace but allow for ‘vaping’ breaks or provide areas where employees can use e-cigarettes, the employer needs to ensure that those who use e-cigarettes are not put at risk of harm from secondhand tobacco smoke.

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Template: Smoke-free policy – partial ban 1. Introduction 1.1 Smoking remains the single biggest cause of preventable death and disability in the United Kingdom.

1.2 [Company] is committed to creating work environments which are free of smoke and vaporised nicotine containing products to protect the health and wellbeing of staff and visitors.

2. Application 2.1 This policy applies to all staff employed by [Company]. All contractors (including agency staff and other contract staff), students, volunteers and visitors are expected to adhere to the smoke-free policy.

3. Definitions 3.1 This policy, refers to cigarettes, cigars, pipe and tobacco containing products and the use of nicotine containing products which replicate smoking, such as vaporisers and electronic cigarettes.

4. Nicotine containing products and vaporisers, including electronic cigarettes 4.1 E-cigarettes are often said to be a safe alternative to smoking real cigarettes. However the British Medical Association (BMA) stated that: • E-cigarettes should be included in the ban on smoking in public places.

• There is a lack of rigorous, peer-reviewed studies to support the use of e-cigarettes as a safe and effective nicotine-replacement therapy.

• These devices may also undermine efforts to prevent or stop smoking by making cigarette use seem normal in public and at work. The safest and most effective way to stop (smoking) is with the support of a stop smoking service who can provide regulated, licensed nicotine replacement therapy. Public Health Agency (PHA) advises caution, with a clear message of “don’t smoke and don’t vape.” Guidance developed by Workplace Smoking Cessation Service.

5. Policy statement 5.1 The aim of this policy is to ensure the right of non-smokers to breathe smoke-free air at work. This policy outlines the rights and responsibilities of all staff and visitors.

5.2 [Company] is committed to providing a smoke-free environment for all staff and visitors. As part of this commitment staff will be offered advice and guidance on local cessation services [name of in-house specialist].

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5.3 Smoking will not be permitted in the following areas: 5.3.1 Standard Policy All [Company] owned and leased vehicles will be smoke-free at all times, including the use vaporisers and nicotine containing products (NCP’s), which replicate smoking behaviour. Employees are not permitted to smoke or use vaporisers and NCP’s which replicate smoking behaviour in their own private vehicles when carrying passengers on work related journeys. All of the enclosed areas within the [Company] worksites, without exception. This includes common work areas, the manufacturing facilities, classrooms, conference and meeting rooms, private offices, hallways, the lunchrooms, stairs, restrooms, employer owned or leased vehicles, and all other enclosed facilities. Smoking, the use of vaporisers and NCPs such as electronic cigarettes, shall be restricted to designated smoking areas and is not permitted outside any entrances to [Company]. The aforementioned products may be mistaken for smoking and may encourage others to deem that smoking is permitted. This may result in the [Company] having complaints made about compliance with the law.

5.4 This policy forms part of the [Company] health and safety policy, and any breaches will be dealt with under the normal disciplinary procedure.

6. Responsibilities 6.1 Line-managers and supervisors 6.1.1 Managers are responsible for informing and educating their staff about the smoke- free policy requirements, as they would with any health and safety issues.

6.1.2 Any concerns employees may have regarding smoking at work should be reported immediately to their line manager, so that affirmative action may be taken, if necessary.

6.2 Staff 6.2.1 All members of staff have the responsibility to comply with the smoke-free policy.

6.2.2 Staff who want to smoke during official breaks can do so within designated areas [identify] Guidance developed by Workplace Smoking Cessation Service 6.2.3 Staff are encouraged to remind anyone (colleagues and visitors) who is failing to comply with the smoke-free policy about the conditions of the policy.

6.2.4 From [date policy to be adopted], any member of staff who fails to comply with the smoke-free policy will be [may be] subject to disciplinary action. An initial breach of this policy will be dealt with in an informal policy capacity. However, any member of staff who persistently fails to comply with the policy, will be subject to disciplinary policy and procedure.

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6.2.5 All staff wishing to quit smoking are encouraged to avail of local quit smoking services.

6.3 Human Resources 6.3.1 Job advertisement and job descriptions will include a statement to say that [Company] is a smoke-free working environment.

6.3.2 All new staff will be informed of the smoke-free policy and provided with information on local cessation services.

6.3.3 The smoke-free policy will be linked to current disciplinary policy 7. Support for staff who smoke 7.1 It is recognised that some smokers will need to adjust and some may welcome support to quit smoking. A list of local cessation services which offers free nicotine replacement therapy (NRT) and behavioural support will be made available to staff.

7.2 Where numbers and demand permit, a smoking cessation specialist will deliver either brief interventions or an on-site clinic.

8. Implementation 8.1 There will be a three month implementation period in the lead up to the launch of the policy.

9. Review 9.1 As with other policies, the smoke-free policy will be reviewed on an annual basis and will be amended, as appropriate.

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Template: Smoke-free policy – total ban 1. Introduction 1.1 Smoking remains the single biggest cause of preventable death and disability in the United Kingdom.

1.2 [Company] is committed to creating work environments which are free of smoke and vaporised nicotine containing products protect the health and wellbeing of staff and visitors.

2. Application 2.1 This policy applies to all staff employed by [Company]. All contractors (including agency staff and other contract staff), students, volunteers and visitors are expected to adhere to the smoke-free policy.

3. Definitions 3.1 This policy, refers to regular cigarettes, cigars and pipe and any other tobacco containing products and the use of nicotine containing products which replicate smoking, such as vaporisers and electronic cigarettes.

4. Nicotine containing products and electronic cigarettes 4.1 E-cigarettes are often said to be a safe alternative to smoking real cigarettes.

However the British Medical Association (BMA) stated that: • E-cigarettes should be included in the ban on smoking in public places.

• There is a lack of rigorous, peer-reviewed studies to support the use of e-cigarettes as a safe and effective nicotine-replacement therapy.

• These devices may also undermine efforts to prevent or stop smoking by making cigarette use seem normal in public and at work. The safest and most effective way to stop (smoking) is with the support of a stop smoking service who can provide regulated, licensed nicotine replacement therapy. Public Health Agency (PHA) advises caution, with a clear message of “don’t smoke and don’t vape.”

Guidance developed by Workplace Smoking Cessation Service.

5. Policy statement 5.1 The aim of this policy is to ensure the right of non-smokers to breathe smoke-free air at work. This policy outlines the rights and responsibilities of all staff and visitors.

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5.2 [Company] is committed to providing a smoke-free environment for all staff and visitors.

As part of this commitment staff will be offered advice and guidance on local cessation services [or name of in-house specialist].

5.3 Smoke-free Policy All [Company] owned and leased vehicles will be smoke-free at all times, including the use vaporisers and nicotine containing products (NCP’s), which replicate smoking behaviour. Employees are not permitted to smoke or use vaporisers and NCP’s which replicate smoking behaviour in their own private vehicles when carrying passengers on work related journeys. Smoking and the use of vaporisers and NCPs such as electronic cigarettes, is not permitted in any part of the grounds at any time, by any person regardless of their status or business with the premises/company.

This includes entrances, car parks, gardens, or any part of the premises owner or leased by [Company].

5.4 This policy forms part of the [Company] health and safety policy, and any breaches will be dealt with under the normal disciplinary procedure.

6. Responsibilities 6.1 Line-managers and supervisors 6.1.1 Managers are responsible for informing and educating their staff about the smoke-free policy requirements, as they would with any health and safety issues.

6.1.2 Any concerns employees may have regarding smoking at work should be reported immediately to their line manager, so that affirmative action may be taken, if necessary.

6.2 Staff 6.2.1 All members of staff have the responsibility to comply with the smoke-free policy.

6.2.2 Staff who want to smoke during official breaks can do so outside of [Company] owned or leased premises and vehicles.

6.2.3 Staff are encouraged to remind anyone (colleagues and visitors) who is failing to comply with the smoke-free policy about the conditions of the policy.

6.2.4 From [date policy to be adopted], any member of staff who fails to comply with the smoke-free policy will be [may be] subject to disciplinary action. An initial breach of this policy will be dealt with in an informal policy capacity. However, any member of staff guidance developed by Workplace Smoking Cessation Service who persistently fails to comply with the policy, will be subject to disciplinary policy and procedure.

6.2.5 All staff wishing to quit smoking are encouraged to be aware of local quit smoking services details can be found at [details].

6.3 Human Resources 6.3.1 Job advertisement and job descriptions will include a statement to say that [Company] is a smoke-free working environment.

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6.3.2 All new staff will be informed of the smoke-free policy, which is linked to current disciplinary policy and provided with information on local cessation services.

7. Support for staff who smoke 7.1 It is recognised that some smokers will need to adjust and some may welcome support to quit smoking. A list of local cessation services which offers free nicotine replacement therapy (NRT) and behavioural support will be made available to staff.

7.2 Where numbers and demand permit a smoking cessation specialist will deliver either brief interventions or an on-site clinic.

8. Implementation 8.1 There will be a three month implementation period in the lead up to the launch of the policy.

9. Review 9.1 As with other policies, the smoke-free policy will be reviewed on an annual basis and will be amended, as appropriate.

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