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Up in smoke

The provincial government wades in on the smoking issue, and creates a compromise

Just in time for National Non-Smoking Week, the Liberal government released new regulations that could see up to 45 per cent of floor space in a hospitality setting – a bar or a restaurant, for example – designated as a smoking area.

Under the new regulations that will be effective as of May 1:

• Employees must give their consent to work in a smoking room and are protected from discrimination if they do not give consent.

• Employee work stations cannot be located in a smoking room.

• Workers can enter the smoking room intermittently to perform their duties but cannot work more than 20 per cent of a shift in the smoking room.

• Hospitality and gaming establishments that choose to allow smoking on their premises must have separate rooms for smoking and non-smoking customers.

• Smoking rooms must be structurally separate and can be no more than 45 per cent of the total floor space in hospitality settings and 65 per cent in bingo halls.

• Air from smoking rooms must either be ventilated directly to the outside or cleaned through a system that meets a minimum standard of 95 per cent operating efficiency at a 0.3 micrometre particle size.

According to Graham Bruce, the minister of skills development and labour, the legislation is a compromise between the demands of the hospitality industry and proposed Workers’ Compensation Board regulations that would make it illegal to expose workers to smoke.

"We’ve developed a solution that respects personal choice, balances all interests in the workplace and is consistent with liquor control and licensing branch policy," said Bruce.

"This regulation provides the highest provincial standard of worker protection in Canada. It does not override local regulations that prohibit workplace smoking in more than 25 municipalities representing about 2 million people in the Lower Mainland and on southern Vancouver Island." That includes Vancouver, Victoria, and most of their surrounding areas.

The controversy over smoking is far from over, however. While the compromise may be good for smokers and the bars and restaurants that rely on smokers for business, many believe it’s at the expense of the workers.

Airspace Action on Smoking and Health, an anti-smoking lobby that has supported the WCB’s approach to protect workers from the beginning, called the new laws "sickening" and a "blatant sell-out of worker health for tobacco industry wealth," said Airspace president Heather Mackenzie.

"Our advice to workers: consult your lawyer – or contact us and we will help you find one. Workers have a right to a smoke-free workplace and this announcement violates that right."

After the first WCB legislation was thrown out in the Supreme Court on March 22 of 2000 due to a lack of consultation, the WCB said it would be back with new legislation. That new legislation, which allowed for the creation of separately ventilated rooms within a license holders establishment providing that the ventilation was adequate and the staff were kept a safe distance, was supposed to come into effect on Sept. 10, 2001.

Concerned by reports of bar closures and lost business during the first ban on smoking, the labour minister asked the WCB board to delay the implementation of their regulations. When the WCB said they could not, the minister overrode the WCB’s authority and delayed the implementation of those laws until government could address the concerns of restaurant and bar owners. At the end of September, he dismissed everyone on the WCB panel except for the chairman.

A committee of MLAs was given until Oct. 31 to review the legislation and make recommendations. The report, which contained seven major recommendations, was delivered on time. The government considered the recommendations and made the new regulations public on Jan. 16.

Airspace, Physicians for a Smoke-Free Canada, asthma-sufferer Sera Kirk and the Canadian Auto Workers union are proceeding with a legal challenge to have the Sept. 10 WCB ban on smoking reinstated.

Under current laws, smoking is allowed in bars and restaurants in separately ventilated areas as stipulated above, and patrons can be served in that area. The WCB legislation prohibited smoke in restaurants, and employers from exposing workers to second-hand smoke.

Neil Collishaw, the research director of Physicians for a Smoke-Free Canada, has even questioned the effectiveness of the ventilation solution – "If a ventilation solution is not good enough for workers at the Ministry of Labour, how can it possibly be good enough for workers in the hospitality workplace?"

The new government legislation is open ended in that municipalities still have the power to implement stiffer smoking regulations. The Resort Municipality of Whistler looked into legislation years ago, but was waiting to see if the WCB regulations would accomplish the same thing.

"There were all sorts of issues within the resort town, the health of the workers, visitor concerns," says Councillor Kristi Wells. "Knowing there was some controversy, and that the WCB was working on it, we though it best to let the province do it."

There hasn’t been any discussion of a municipal smoking bylaw since the government announced its changes on Jan. 16, but that could change if it became an issue for the municipality.

"Certainly something could be brought up under new business, but I don’t believe there’s anything coming through from a staff perspective," Wells said. "We haven’t given staff direction to work on anything yet."

The concern is that locals will understand and comply with the rules, but international tourists to the resort won’t understand, or like, a ban on smoking in the establishments where they’re spending their money. In addition, the bar situation in Whistler is unique – some have patios, or are easily setup for smoking rooms, while others are below ground level and don’t have the necessary facilities without a major renovation. It becomes another competitive issue in a town where competition is already cutthroat.

Coast Garibaldi Health, the regional health authority in the Sea to Sky area, says it will do everything in its power to convince the municipalities to implement a smoking bylaw that would have accomplished the same goals as the WCB regulations.

"It’s a disappointment, but we’ll try to move forward regardless," says Dr. Paul Martiquet, the medical health officer for Coast Garibaldi Health. "Our next step will be to go back to the municipalities, who we’ve already approached before.

"Their comments to us have been that they’d like the provincial government to take this up, that they want consistent policies across the province, and not leave it up to the municipalities. That’s what the (Union of B.C. Municipalities) put forward, but obviously that wasn’t listened to, so we’ll have to go to plan B."

Dr. Martiquet feels that the province "has taken a step backwards on this in respect to protecting the health of workers and the health of the public that frequents establishments in the hospitality industry, pubs and restaurants."

He says the ventilation solution has been proven not to work, and that new evidence showing second-hand smoke is even more harmful than previously thought should have been taken into account by the government.

He also believes that the cost of complying with WCB regulations was not as big as the hospitality industry made it out to be.

According to a report by the Coalition of Hospitality Organizations, during the implementation of the WCB’s first smoking ban from Jan. 1, 2000, to March 22, 2000, the industry lost $100 million in revenues. They also blame the WCB laws on nine bankruptcies and the loss of 1,000 jobs.

The NDP labour minister at the time, Joy McPhail, conduced an economic study of the issue that found that things were not that bad.

While first quarter liquor sales at hotels, restaurants, cabarets and pubs were down in 2000, compared to the first quarter of 1999, the average numbers were still higher than in 1998. Restaurants’ numbers were up, while hotels and night spots were down.

Furthermore, the report concluded that while the sale of beer, wine and spirits dropped significantly at the start of the ban, by the time the ban was lifted on March 22 they had bounced back to the point they were higher than the previous year.

Martiquet also doubts that the new government regulations will empower workers in the slightest.

While workers can choose not to serve in the smoking area, and can complain to the government if they feel their employer is not respecting their rights, Martiquet says most servers won’t want to rock the boat and will go in any way. Besides, with tips on the line, most servers won’t have a choice.

"It’s completely unrealistic to expect that type of compliance and non-discrimination, and it’s clear that hospitality workers, as part of their jobs, will be going into those areas," he says. "Unfortunately that’s how I see it in the real world."

He also feels that workers will be discriminated against in the hiring process, and that preference will be given to workers who have no objection to going into smoking areas. "It’s discrimination right there."

Coast Garibaldi Health doesn’t have a date set to approach the municipalities, but Martiquet says it will be sooner rather than later.

The ironic thing in all of this is a report released by Statistics Canada that discovered that smoking rates are at an all-time low since they started tracking them back in 1965.

Only 23 per cent of Canadians over the age of 15 smoke, and those who do smoke are smoking about 25 per cent less than they used to. British Columbia has the fewest smokers in Canada, only 17 per cent of the population.

Although bars can designate up to 45 per cent of their floor space as a smoking area under the new laws, there may not be enough smokers to fill that area.