Smoking at work

by The Findlaw Team

Roughly one in five New Zealand adults smoke tobacco, according to a government social report in 2010. This means there’s a good chance in every workplace there will be at least one employee who smokes. However, under New Zealand law, smoking is prohibited in all indoor workplaces.

This article explains the “no-smoking” workplace law and looks at the potential issues for employers when employees want to smoke at work.

What the law says on smoking at work

Workplace protection against the harmful effects of tobacco smoke is covered by the Smoke-free Environments Act 1990, rather than the Health and Safety in Employment Act 1992.

In late 2004, the Act made it illegal smoke (or allow smoking) in all indoor workplaces.

Under the Act, employers must take all reasonably practicable steps to make sure that no one smokes at any time in the workplace.

There is also a duty on employees and volunteers not to smoke at any time in a workplace.

What is a workplace?

A workplace is defined as an internal area within or on a:

  • Building or structure occupied by the employer, usually frequented by employees or volunteers during the course of their employment; or
  • Ship, an aircraft, or a train, owned, leased, or otherwise operated by the employer, usually frequented by employees or volunteers during the course of their employment.

The exceptions to this are:

  • Motels or bedrooms and suites in hotels;
  • Cabins or suites on ships while they are assigned to a passenger;
  • Sleeping compartments on trains while they are assigned to a passenger;
  • Cabins on ships while they are assigned to only one employee or volunteer, or to the master or owner;
  • Sleeping compartments on trains while they are assigned to only one employee or volunteer;
  • Prison cells; or
  • A place of residence occupied by the employer.

Is smoking in company cars or other work vehicles allowed?

Smoking in work vehicles may be allowed if the vehicle is provided by the employer and normally used by employees or volunteers, but only if:

  • The public does not normally have access to any part of the vehicle; and
  • All the employees and volunteers who use it regularly or from time to time have jointly or individually given the employer written notice either asking the employer to permit smoking in it, or stating that they do not object to other people smoking in it.

However, if any of those employees or volunteers subsequently notifies the employer that they no longer want smoking in the vehicle, then smoking in the vehicle must stop.

Smoking in hospitals, rest homes and care facilities

Smoking by patients or residents in designated smoking rooms in hospital care institutions, residential disability care institutions, and rest homes may be allowed, so long as certain requirements are met, eg in relation to mechanical ventilation systems.

Schools and early childhood centres must be completely smoke-free

All schools and early childhood centres must be completely smoke-free, indoors and outdoors, 24 hours a day, 7 days a week.

Do employers have to have a smoking policy?

The legal requirement for employers to have a smoking policy was removed from the Smoke-free Environments Act 1990 in December 2004.

However, it is still advisable for employers to have a written policy to inform their employees that smoking is banned and to tell them what will happen if they disregard the policy. A policy is also useful to tell employees what is considered acceptable in relation to taking breaks to smoke outside the workplace.

The policy could include the areas where smokers can (and cannot) smoke outside the premises, especially if the employer is concerned about the image of their organisation where employees stand at the main entrance of the workplace to smoke.

Where the premises is shared by more than one employer, the building manager may not permit smoking in shared outdoor areas, such as the car park, and this information should be communicated to employees.

The complaints process

If someone has reasonable grounds to believe there has been a breach of the workplace smoking provisions of the Smoke-free Environments Act 1990, the person may complain to the employer. Employers have a duty to investigate such a complaint within 20 working days and to resolve it if it appears that a breach has occurred.

If the employer has breached the Act, they must remedy the cause of the complaint or assure the complainant that there will be no further breach from that cause. If an employee or volunteer has breached the Act, the employer must try to get the employee or volunteer to assure them satisfactorily that they will not repeat the cause of the complaint.

Employee representatives are entitled to attend meetings called by the employer to resolve complaints. If the employer cannot investigate and resolve the complaint within 40 days of it being made, it must be referred in writing to the Ministry of Health.

Complaints about an alleged breach of the Act may be made to a Smoke-free Officer at the local public health service.

Smoking rooms: Case example

The legality of smoking rooms was tested by the case of Progressive Meats Ltd v Ministry of Health (2006).

Progressive meat employed around 300 staff, most of whom were involved in meat processing and many of whom were smokers. Prior to 2002, the smokers used to smoke during their breaks in the car park or cafeteria. However, changes in the law meant that the meat workers could not leave the protective clothing area without removing their protective clothing. This made it impractical for the smokers to go outside the protective clothing area for their breaks, and the company provided a special smoking room within the area.

The smoking room was separate from the cafeteria and was only used for smoking. Advance ventilation systems and the design of the room meant that tobacco smoke didn’t enter any other area of the workplace. There was also no-one employed to clean the smoking room.
The company believed that this arrangement allowed it to meet the policy of the Smoke-Free Environments Act 1990, which has a stated purpose of preventing the detrimental effect of other people’s smoking in the workplace on those who don’t smoke or who don’t want to smoke there.

The company was prosecuted by the Ministry of Health for breaching the 1990 Act, which prohibits smoking in any internal area of a workplace. This specifically includes areas like corridors, lobbies, cafeterias or any other common internal area attached to, forming part of, or used in conjunction with a workplace. The case went to the High Court for a ruling.

The High Court expressed sympathy for the company, “whose conduct does not infringe the expressed policy of the Act and which has gone to much effort to accommodate the demands of its smokers”. It noted that smokers working for the company weren’t able to go outside to smoke like smokers in other industries because of the hygiene requirements.

However, the wording of the Act is clear, and to interpret this clear wording as allowing the company’s smoking room would result in the wholesale creation of smoking rooms elsewhere and openly contradict the Act’s strict control. The Court concluded that the company’s smoking room came within the definition of a workplace under the Act and therefore was in breach of the prohibition on smoking in workplaces.

Taking smoking breaks (smokos)

Smokers who pop out of the office regularly throughout the day can be a contentious issue. In terms of the legal entitlement to take breaks, whether or not it’s to smoke a cigarette, employees who work six to eight hours a day are entitled to take two 10-minute rest breaks (paid) and one 30-minute meal break (unpaid).

For more information, see this article on rest and meal breaks

Other than this minimum entitlement provided by the Employment Relations Act 2000, any additional breaks for an employee to go and have a cigarette outside of the workplace is at the employer’s discretion. Some employers will have no problem with it, while others may be more strict. The type of work and ability to leave the workstation, the make-up of the workforce and the company culture, will no doubt all have an influence on whether the employer allows employees to take frequent smoking breaks.

Smoking breaks against the house rules: Case example

In Burch v Rush Security Systems Ltd (2011), the dismissal of an employee who broke the house rules by leaving the premises to smoke was justified.

The employee was a senior alarm and video monitoring operator. When interviewed for the job, he was asked whether he was a smoker and replied that he was in the process of quitting.
The interviewer told the man that the position was such that he would not be able to smoke for a minimum of 12 hours as he was not able to leave the premises, and it was important he took that into account before accepting the position.

Some months after the employee started the job, cleaners reported that the premises had been left unattended during his shift. The CEO reminded the employee that he was not allowed to leave the building and that to do so was a serious offence that would lead to dismissal.

The following month, the CEO found the premises unattended. The employee walked in and said he had been out smoking. After reviewing CCTV footage, it was discovered that he had also left the premises unattended the previous day.

A disciplinary meeting was held and the employee acknowledged that the CEO had spoken to him about leaving the premises unattended. He said that he had complied for two weeks but breached the instruction as he needed to smoke. The employee said he took the phone with him when he left the building and that he would leave the premises again to smoke. He was dismissed for serious misconduct.

The employee claimed that his dismissal was unjustified and that the company had breached sections 69ZD and 69ZE of the Employment Relations Act 2000 by not providing him with rest and meal breaks.

The Employment Relations Authority noted that the employee had access to a lunch room (where he could hear the alarm if it was activated) and that he was able to have breaks. The employee’s real issue was that he was unable to smoke.

The Authority determined that it was not for the employee to unilaterally determine he could go outside and smoke while taking the phone with him. He had been told he could not smoke before he accepted the position, and had accepted it on that basis. His dismissal was justified.

Refusing to hire smokers

Some employers actively discriminate against smokers by not hiring anyone who smokes. The Auckland and Waikato District Health Boards and Quit are examples of New Zealand employers who reportedly have a policy not to hire smokers.

As being (or not being) a smoker is not one of the specified grounds of unlawful discrimination under the Human Rights Act 1993 or the Employment Relations Act 2000, recruiting non-smokers may not, on the face of it, be unlawful discrimination.

However, it is possible that someone who was discriminated against because they were a smoker could claim it was indirect discrimination on one of the unlawful grounds.

For example, they could claim that being addicted to smoking tobacco was a “disability”, which is one of the unlawful grounds of discrimination.

Another possibility is that they could claim a policy against hiring smokers indirectly discriminates against Maori or Pacific Islanders whose rates of smoking are significantly higher than the general population – 46 percent and 31 percent respectively, compared to a general average of 21 percent, according to the social report.

This possibility does not yet appear to have been tested by any court in New Zealand.

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