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Round Two

As the WCB prepares to reintroduce smoking regulations, it appears they have another fight on their hands

The WCB worries second-hand smoke may be the death of bar and restaurant workers – the bar and restaurant industry worries that second-hand smoke regulations may be the death of business

The success or failure of the new Workers Compensation Board regulations protecting workers from the hazards of second-hand smoke depends greatly upon your definition of what constitutes success and what constitutes failure. It’s not what you would call a win-win situation.

It was almost one year ago this week – March 22 to be precise – that the Supreme Court of B.C. ruled that previous smoking legislation introduced by the Worker Compensation Board was null and void, as far as bars, pubs and restaurants were concernted, due to the lack of public consultation that preceded it.

While the WCB did hold public hearings on a law that would protect workers from second hand smoke, entertainment venues, restaurants and bars were exempt at the time. When the WCB added a "sunset clause" that removed this exemption, bar and restaurant owners successfully argued that another round of public hearings was required.

The WCB vowed to reintroduce the regulations ASAP, and held four public hearings around the province in June. They collected 546 oral and written submissions, pro and con, and promised to take them under advisement when they reintroduced the regulations.

During the 80 days the original regulations were in effect, prohibiting bars and restaurants to expose their employees to second-hand smoke without exception, the B.C. Coalition of Hospitality Organizations estimates that six bars went out of business and another 730 bar and restaurant workers lost their jobs. The same group also claims that they lost revenues in excess of $100 million as a result of the prohibition – between 15 and 85 per cent of revenues – and a few bars even announced that they would be filing a class action lawsuit to recoup their losses.

It was thrown out of court, but the WCB was ordered by the provincial government to look into the matter to determine what the losses were and to do what they do best – compensate.

The study revealed that in the first month, business at B.C.’s bars and restaurants declined 12.3 per cent for the month of January, but rebounded slightly to a 4.9 per cent decline in February. The WCB did not translate those percentages into dollar values.

Despite the failure of the original sunset clause, and the likelihood that some form of compensation will be necessary down the road, the WCB is committed to including bars, restaurants and entertainment venues in the Occupational Health and Safety Regulations.

After all the input from bars and restaurants collected during the public hearing process, however, the amendments to the sunset clause were relatively minor. All employers, including those in the hospitality, long-term care, and provincial correctional facilities must "control workers’ exposure to environmental tobacco smoke, (the sunset clause) provides reasonable options, such as designated smoking areas or other equally effective means, to protect workers," according the WCB.

Designated smoking areas include outdoor locations and separately ventilated indoor smoking rooms "that workers must not enter except in an emergency, where there is a requirement to investigate for illegal activity, or until the smoke has been effectively removed."

The date for compliance is Sept. 10, and it appears that there is little that bars and restaurants can do in the next six months other than get ready for the changes.

Provincial health officer Dr. Perry Kendall applauds the new regulation, but likes the old regulation better.

"While I welcome the overall direction of this regulation, I am concerned that this decision may not totally protect the health of all women and men who work in the hospitality industry," said Kendall. "The public health community broadly agrees that there should be no provision for designated smoking rooms indoors due to the difficulties with monitoring, enforcement and exposure to second-hand smoke that will still occur."

The Airspace Action on Smoking and Health group also applauded the move – with reservations. "Considering the evidence, what else could the WCB do?" asked Airspace president Heather Mackenzie. "Workers are being poisoned in large numbers – and killed – by this totally preventable cause. We are concerned, though, that workers have to wait six months for clean air."

While many bar and restaurants owners claimed that their ventilation systems were more than adequate to clear their establishments of second-hand smoke, a WCB study found that while filtration systems were adequate for cleaning the air of smoking particulate matter, they were unable to remove the toxic gases associated with smoke. "Ventilation, as a solution to second-hand smoke, clearly sucks," said Mackenzie.

The Clean Air Coalition of B.C., which includes the Canadian Cancer Society and the B.C. Lung Association, also voiced their support for the WCB initiative.

"The bottom line is that over 80 per cent of British Columbians don’t smoke, and more than eight out of 10 British Columbians are concerned about the health effects of second-hand smoke," said Bobbe Wood, executive director of the Heart and Stroke Foundation of B.C. and Yukon.

In a recent survey of licensed establishments, the Clean Air Coalition found that two out of three bars and restaurants are already in compliance with local non-smoking bylaws, or are voluntarily complying with the new regulation.

Nevertheless, license holders have panned the new regulations, claiming that they still haven’t been consulted. Vance Campbell, a spokesperson for the B.C. Liquor Licensee and Retailers Association, told Business in Vancouver that nobody within his organization had been consulted by the WCB. They will ask the Provincial Ombudsman to overturn the regulations before the Sept. 10 deadline.

The WCB countered by saying that the association had its chance to comment at the public hearings in June. And while the WCB is aware that it will cost the average bar about $10,000 to set up an indoor smoking room, given all the evidence that second-hand smoke hurts and even kills, and their own mandate to protect the health of workers, they say they did not have a choice.

The Whistler Food and Beverage Association has not received any information about the new ban, but president Dale Schweighardt says the announcement was more or less expected.

"There are a lot of businesses that have chosen to remain non-smoking, or have made other arrangements with outdoor patios, or by customizing their facilities in lots of different ways," he says.

"Basically, this is something we knew was coming back, and although we’re not entirely thrilled about it, everyone is trying to work within the guidelines."

Whistler’s international clientele are generally less understanding and accepting of the rules than locals, which makes it harder for staff to enforce the rules and keep customers happy. When the first smoking ban was in place, bar owners and managers reported everything from customers walking out, to shouting matches, to fist fights in the first few weeks.

People got used to it after a while, and while business slid at a few locations, in many other establishments it actually increased.

In March, when the sunset clause was repealed, many establishments remained non-smoking, including Tapley’s, The Boot, Moe Joe’s, Dubh Linn Gate, Citta’s, and Black’s Pub.

In Whistler, where there is a steady stream of customers in the peak season and a number of alternatives, Schweighardt says the regulation is easier to swallow. Smaller towns are not as lucky.

"I think that it’s definitely something that’s going to slow down the pub atmosphere in a lot of small communities and in the Lower Mainland. People who traditionally go for their beer after work, go for their beer and have a smoke – if that’s not open to them it’s just as easy and less expensive for them to go home and have that beer."

While the WCB considers the consultation process closed, Schweighardt believes there is still room for innovation and discussion. "It’s an ongoing process, as is the case with everything with the WCB. Things get customized as they go along."

A copy of the WCB’s report is available at