Smoking area for employees - is it the employer's responsibility?
Only a few dozen years ago, almost every workplace had a specific place for smoking employees. This is becoming rare today, largely due to the shift away from smoking in the workplace. Some employees still use tobacco products - does the entrepreneur have to provide them with a separate place in the company?
Smoking at work
Many people who start working in a given company wonder whether smoking in such a place is legally allowed. This topic is quite controversial because nowadays not all employees use tobacco products. In fact, smoking at work can never take place in the performance of official duties - such behavior, especially if it is widespread, may result in the imposition of a disciplinary penalty and, in extreme cases, even disciplinary dismissal.
The possibility of smoking at work appears only when the employee takes the break he is entitled to - during this time the employee has free time and can spend it on his own needs (rest, eating meals, private telephone calls or smoking cigarettes in question). Pursuant to Art. 134 of the Labor Code, if the employee's daily working time is at least 6 hours, the employee has the right to a break at work of at least 15 minutes, included in the working time.
Free time for an employee will not always entitle him to smoke, especially when company policy is against it. Workplaces may apply their own internal regulations prohibiting the use of tobacco products (including electronic ones) on the premises of the enterprise. If the employee acts against these rules, he or she may be liable to the supervisor. It will be similar in a situation where there is no separate place for smoking in the company - despite the lack of a clear prohibition, the employee cannot take a cigarette break.
Smoking area for employees
The employer's consent to the fact that his employees may smoke cigarettes during their break is not sufficient for employees to exercise this right in any way. In other words, the supervisor must provide a designated smoking area for employees, otherwise he will run the risk of violating health and safety regulations.
Smoking cigarettes on the premises of the workplace where no appropriate place has been designated is a violation of applicable law. According to Art. 5 sec. 1 and 1a of the Act of November 9, 1995 on the protection of health against the consequences of using tobacco and tobacco products, it is forbidden to smoke tobacco products, including smoking innovative tobacco products, and smoking electronic cigarettes:
- on the premises of health care facilities of health care entities and in the premises of other facilities where health services are provided;
- on the premises of organizational units of the education system, referred to in the regulations on the education system, and organizational units of social assistance, referred to in the provisions on social assistance;
- at the university;
- in the premises of workplaces other than those mentioned above;
- in the premises of cultural and leisure facilities for public use;
- in gastronomic and entertainment establishments;
- on public passenger transport and in passenger service facilities;
- at public transport stops;
- in the premises of sports facilities;
- in generally accessible places intended for children to play;
- in other rooms available for public use.
The owner or manager of the facility or means of transport in which smoking and electronic cigarette smoking is prohibited, is obliged to place in visible places an appropriate verbal and graphic marking informing about the ban on smoking tobacco products and smoking electronic cigarettes on the premises of the facility or in the means of transport, hereinafter referred to as further information about the ban on smoking.
Start a free 30-day trial period with no strings attached!
Does the employer have to create a smoking room in the company?
Until a few years ago, the provisions of the labor law and health and safety at work stipulated that every employer must designate a smoking area for employees on the premises of his company. Interestingly, there were many court decisions that directly imposed this obligation on employers. It is worth mentioning at this point the judgment of the Supreme Administrative Court of 29 April 2009 (file reference number I OSK 773/08), according to which providing employees with specific hygienic and sanitary rooms, including smoking rooms, is an absolute obligation of the employer. However, it does not depend on his discretion, including his beliefs about smoking, or his economic and financial situation. As a consequence, the view should be shared that the employer is obliged to separate and adapt premises intended for smoking and to designate places where smoking is prohibited, as well as places where smoking is allowed. This is due to the grammatical and purposeful interpretation of Art. 5 sec. 1 point 3 of the Act of November 9, 1995 on the protection of health against the consequences of using tobacco products. The provisions of § 40 of the Annex to the Regulation of the Minister of Labor and Social Policy of September 26, 1997 on general provisions on health and safety at work clearly show that the legislator distinguishes between smoking rooms and places for smoking. This is clearly evidenced by § 41 of the annex specifying the parameters of the smoking room - the area of not less than 8 m2, with at least 0.1 m2 of floor space per employee, as well as § 42 of the same annex requiring "tenfold air exchange in the smoking room" within an hour ". Therefore, designating places for smoking outside the workplace and equipping them with ashtrays does not meet the requirements of smoking rooms. Again, from the grammatical and teleological interpretation of § 40-42 of the Annex to the abovementioned The regulation makes it clear that only a separate room suitable for smoking should be considered a smoking room. Otherwise, it would be meaningless to require that the smoking room should be "air changed ten times in an hour". The provisions of the Act on health protection against the consequences of using tobacco products do not provide for the possibility for the employer to introduce an absolute ban on smoking in the workplace. It is valid only outside separated places, which means that smoking is allowed in separate and adapted rooms. The employer is obliged to ensure that such prohibition is implemented, which means that it cannot be revoked or its statutory scope changed. The above-mentioned order is not exempt from introducing a general ban on smoking in a given workplace.
The above judgment, although considered valid, is no longer valid. According to the current sanitary and hygienic regulations, the employer is not obliged to create smoking rooms on the premises of his enterprise. Employees do not have any claims against their supervisor, even when the smoking room is a small place outside the company's building. Moreover, employers can introduce a total ban on smoking on the premises of their enterprise, the violation of which will result in employee liability.
If the employer completely prohibits the smoking of tobacco products in his company, the employee will not be able to do anything about it. However, if smoking is allowed and no suitable place or room has been allocated, the only solution will be to use cigarettes outside the premises, i.e. in the open air. Unfortunately, employees cannot invoke any provisions regarding discrimination against employees - these do not provide that the lack of a smoking room designation violates general health and safety rules or employee rights.
The current legal status in Poland allows employers to introduce a total or partial smoking ban on the premises of a specific enterprise. Moreover, the employer does not have to designate a smoking room in his company, even if he agrees that his employees smoke cigarettes. In this case, smoking is only allowed outside the company building (outdoors). Employees cannot in any way force their supervisor to designate special places for smoking in the company's buildings, nor are they entitled to any claims in this respect. If the employee violates the smoking ban or smokes in the building (or outside the designated place), he or she is exposed to liability for the violation of basic employee duties and health and safety regulations. The employer may then apply a sanction or dismiss the person from work under disciplinary procedure.