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Where there's smoke, there's liability

Exposure to second hand cigarette smoke is now a recognized workplace hazard in Ontario.

Recently the Ontario Workplace Safety and Insurance Board (WSIB) granted benefits to a career waitress who became ill due to second hand cigarette smoke. The waitress had no personal direct or indirect exposure to tobacco smoke, but worked decades in smoke-filled bars and restaurants. As a result, her cancer has been ruled attributable to workplace exposure. The WSIB has accepted liability for the worker's benefits, the cost of which will be transferred back to her employer and its industry.

The implications of this claim are stark: an employer permitting exposure to second hand smoke may be subjecting employees to a hazard contrary to the Occupational Health and Safety Act. If the employee sustains genuine medical problems due to the exposure - temporary or permanent - the employee may be entitled to benefits under the Workplace Safety and Insurance Act.

If an employee makes a claim due to second hand smoke exposure, consider these key questions:

• What condition has been diagnosed?
• Was there anything in the workplace which could plausibly have created the disease?
• If so, was the workplace exposure serious enough to be the predominant cause?
• Did the employee have any personal exposures, outside the workplace, which might be the predominant or sole cause?

Recent changes to municipal bylaws - banning smoking in most public places - may help prevent future cases. You should also ensure that your workplace is smoke-free, and that any smoking is confined either to the outdoors or adequately ventilated areas. Non-smoking employees should be advised of the hazards of second hand smoke exposure.

Even if there is no claim, some employees may object to any work-related exposure to second hand smoke. It is legal to refuse "dangerous" work, so you should investigate whether the complaint has any merit. Factors to consider include the intensity and frequency of the exposure, and whether infrequent or occasional exposure to second hand smoke could really cause lasting ill effects. If you are convinced there is no risk, discuss your views with the employee. If the employee remains unconvinced and refuses the work, obey the work refusal rules and ask the Ministry of Labour to send an Inspector to investigate the matter.

For further information on occupational safety and workers' compensation matters, please contact George Rontiris at (613) 940-2732.