Is vaping in the office ok?
Under WHS Law, business owners and company directors must ensure that the business has systems and measures in place that manages risks to health and safety in the workplace. This primary duty belongs to the Person Conducting a Business or Undertaking, i.e. business, organisation, corporation, etc. Assurance belongs to the officers of the business. They must ensure that the business meets its legal obligations.
For a risk to be deemed “managed” the risk had to have been either a) eliminated or b) controlled.
Risk controls apply if the risk was not able to be eliminated.
Environmental Tobacco Smoke
SafeWork NSW have said much about Environmental Tobacco Smoke (ETS) which extends to the use of e-cigarettes. ETS is commonly known as “passive smoking” or “second-hand smoke.” Under the NSW Smoke-Free Environment Act 2000, the term “smoking” means to use, consume, hold or otherwise have control over a tobacco product, non-tobacco smoking product or e-cigarette that is generating (whether or not by burning) smoke or an aerosol or vapour.
SafeWork NSW states that environmental e-cigarette vapour, second-hand e-cigarette vapour or passive vaping should be treated in the same way as environmental tobacco smoke. Workers must not be exposed to environmental tobacco smoke or e-cigarette vapour while undertaking their work.
Workplaces are considered enclosed public places. The Smoke-Free Environment Act requires all enclosed public places in NSW to be smoke-free unless there is a specific exemption.
E-cigarettes
Vaping is a more recent alternative to cigarette smoking but has been fully addressed in workplace legislation.
If a worker or workers contracted a disease or condition that could be linked to exposure to contaminants from smoking or vaping, there is potential for a court case for the business. Whether the business wins or loses the case, there will be minimally reputational damage, legal costs for mounting a defence, and possibly fines for the directors for failing to ensure that the business had safe systems in place to protect staff from risks to their health and safety. Directors and CEOs have an assurance role in the business and have corresponding duties under Section 27 of the WHS Act.
Businesses must consult with workers about control measures of risks that are being assessed with a view to being controlled if not eliminated. This includes discussing control measures that eliminate worker exposure to environmental tobacco smoke or e-cigarette vapour.
Indoor work environments
Smoking is prohibited inside a workplace and in outdoor areas of a workplace such as within 4 metres of an entrance or exit used by the public or workers.
Outdoor public places
Some public places, like taxi ranks, bus stops, train platforms, or outdoor dining areas of a restaurant are specifically included as smoke-free outdoor public places. These and others are covered in Clause 6A of the Smoke-Free Environment Regulation 2016.
Outdoor work environments
Some workplaces may have outdoor public places where smoking can lawfully occur. These are generally areas that have been purposefully designated for smoking, such as at a bar, club, casino, or a hotel. These spaces must meet the criteria specified under Clause 8 of the NSW Smoke-Free Environment Regulation 2016.
Businesses that have workspaces where smoking can lawfully occur still have a duty to protect the health and safety of their workers and visitors elsewhere in the workplace where smoking is prohibited. This includes prohibiting the use of e-cigarettes in those areas where smoking is not allowed.
Consult with workers
As with any risk assessment and resolution process, company directors will have their leadership team start by identifying any work activities that may expose workers to environmental tobacco smoke or e-cigarette vapour. Once identified they must talk to the people about changes to work activities so that the risk of exposure is removed. Measures must be determined to action the recommendations that were obtained by consultation with workers who might be affected.
As vaping is still considered a new thing by some people, there may be people who vape in your office who honestly do not know that what they are doing may be a health and safety matter. Vaping may need to be raised as a health and safety matter. Every person in a workplace is a WHS duty holder under WHS law.
Applying standard WHS risk management principles is the means to eliminating or controlling the risk. But persons need to know they have a responsibility in the first place before they may see the need to be involved in such actions.
Training
Training in WHS duties may help persons at your workplace understand their responsibilities including smoking and vaping in the workplace.
Courtenell offers several non-judgmental and unbiased WHS training courses in WHS duties and WHS risk management that may help raise awareness about WHS responsibilities and the use of e-cigarettes in a work environment.
For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.
Courtenell eArticle 18 October, 2024
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