January 19, 2006

Butting out on the job site

PETER KENTER

correspondent

TORONTO

Workplace smoking legislation has largely bypassed the construction industry on the assumption that any smoking takes place in the open air.

The new Smoke-Free Ontario Act, however, may dramatically curtail workplace smoking when it takes effect on May 31 —even on construction sites.

Ontario’s Smoking in the Workplace Act, in effect since 1990, was aimed at tobacco use inside buildings. The new Act will extend itself to any enclosed workplace, enclosed public space and enclosed workplace vehicle. While regulations have yet to be fine-tuned, the legislation definitely means that smoking will be forbidden in enclosed construction vehicles, site trailers, portable toilet enclosures and tents.

Beyond that, the legislation becomes more difficult to interpret. An enclosed space will be defined as any building or vehicle with a roof on it. At what point during construction of a building does the outdoors become the indoors — when the walls go up, when a ceiling is installed, or when the roof has been completed?

“That’s an excellent question and there isn’t any easy answer to it,” says Ryan J. Conlin, an associate with Ontario legal firm Stringer Brisbin Humphrey, specializing in occupational health and safety. “At some mythical point, an inspector decides the building under construction is covered by a roof. What will that mean in the real world? The people drafting this bill haven’t spent a great deal of time on industry specifics.”

New regulations will also oblige employers to make sure that all people on a construction site—including visitors and contractors—comply with smoking regulations. Failure to comply could result in stiff penalties, says Conlin.

“Individuals could be fined a maximum of $4,000 on a first offence and corporations up to $10,000. Fines would escalate for subsequent convictions, up to a potential maximum of $300,000 for a corporation. Even things that may seem like minor technicalities, such as having an ashtray visible, can result in fines.”

The Ontario Ministry of Health Promotion promises to clarify employer and worker responsibilities under the Act as the May deadline approaches.

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