The implementation of the objectives of the Law 28/2005 smoking prevention workers in their workplaces differs depending on whether active smokers or passive, although in both cases is based on indisputable scientific evidence that clearly harmfulness snuff has for them.
Regarding the former, the law is a disincentive and limiting of smoking, but leaves to individual freedom the last option to continue consuming a substance which, despite its legal consideration of “harmful”, is still permitted. On the latter, the law is clearly protective of their health, curtailing freedom of active smokers based on a genuine right to breathe passive smoke outdoors snuff smoking.
The question that the law has solved businesses is the exclusion of the possible alternative of the smoking room
In other countries, smoking is prohibited within a given distance from the doors of the workplace
It is essentially according to this protective aspect of passive smoking law that has been established since January 1, without any transitional period, a “total” ban on smoking in the workplace. This total ban has, however, two limitations of different nature that we want to underline its importance both as the already raising controversy.
The first limitation, the most obvious, is that the “total” ban refers to the “closed” areas of the workplace, leaving the willingness of employers smokable in the “open spaces”. With such limited companies has come to them to solve a problem, but it certainly has created them a clear dilemma. The question to be solved it is the exclusion of the possible alternative of the smoking room, avoiding the disadvantages that the need for such rooms they have in store for the vast majority of Spanish companies (predominantly small) both material difficulty of arbitrating such rooms in workplaces very low as the costs of insulation and ventilation that would entail.
But the dilemma is raising them in these months is whether or not to allow smoking definitely opt for workers in the “open spaces” of companies. This possible enabling it is generally involving considerable difficulties in managing working time of smokers when they try to go to such spaces periods beyond the general breaks regulated -the traditional “time sandwich” – what binds unfairness that is causing this respect non-smokers. Hence the choice of “open spaces”, although supported by many companies temporarily, tends to change in a more or less short term, to a total ban on smoking in all workplaces, irrespective they try to closed or open spaces.
The only “way out” that smokers may have affected workers in cases of extension to outdoor spaces, namely the entrances to the workplace, is also expected to go closing them. And not only because of the possible business prohibition to leave the workplace throughout the day, but also as a matter of “image” that customers or business users do not encounter a group of massed workers smoking in door-in centers other countries smoking is prohibited within a given distance from the gates of work-centers.
Incidentally, this total ban on smoking in enclosed spaces in the workplace is not being applied or -the day work 24 hours a day, 365 days a year, and not only for workers but also any person who is in such centers suppliers, customers, workers from temporary employment agencies or subcontractors, corporate office of the company and so on. In this sense, we are facing a “democratic” ban applied equally to the CEO of the company or the most important of the same client.
But, paradoxical as it may seem, this prohibition will apply to all workplaces to their workers, thus including those who, being of catering, hospitality, entertainment, etc., may have enabled areas smoking to their customers or, if less than one hundred square meters, the owners have chosen to allow its users to smoke glass water pipe. More than a paradox, as the own Minister of Health has been pleased to recognize with a frankness that honors him, it is a clear contradiction with regard for the law of passive smoking as a risk to workers’ health, as those who provide services in those areas and establishments will be regularly exposed to smoke snuff.
Clearly these establishments entrepreneurs have to adopt a range of measures to reduce exposure to risks such workers working -turnos short-term revolving facilities in these areas, excellent ventilation and so on. But these must be well aware that, even so, this permissiveness of the law is not going to fully protect the future of any claims that these workers can make if linked to passive smoking under the rules of prevention disease occupational risk.
This “territorial” nature of the smoking ban marked by the workplace born a second limitation to business schools in this area that has already caused and no doubt will cause controversy: this prohibition refers to a place, but does not extend the person beyond the smoker when present in the workplace. None of the provisions of the law can be interpreted as allowing companies to make a recruitment excluding smokers or firing workers are. With some exceptions where a legitimate business interest-organizations dedicated to the promotion of the smoking ban, jobs in which the olfactory or degustativos senses are essential-, the truth is it is proved that our labor system, root rights to privacy and the work collected constitutionally, it takes special care to set aside the disciplinary power of the employer “social habits” of illegal workers even as the drogadicción-, they do not have negative impact on the workplace.
However, there is no doubt that in the not too distant future we will have this debate more pronounced among us form. And do not think that this is a “uniquely American” controversy, as is sometimes claimed. In fact, there are in the United States centers that expressly prohibits discrimination on the social habits such as smoking, while in countries as far apart culturally from that American country like Sweden or New Zealand is not considered discriminatory exclusion of smokers. The decision by the World Health Organization to exclude from its template smokers consolidation represents nothing less than the international level of this debate.
From the moment progressively evidences that smokers have higher rates of absenteeism and propensity to disease, the cost of health protection through private policies is higher and they tend to be less productive due to disruptions working time, the tendency for companies to employ selective criteria in this regard seems unstoppable and will be essential mission of the law establish the extent and limits of such criteria.
In any case, as demonstrated the months since the entry into force of the law, we have a ban on smoking in workplaces, even causing certain disputes between employers and workers and these together, it will apply normally, thanks to both an adequate response from the human resources management to organizational adjustments required as that prohibition has the same civic sense of the workers themselves in their application. However, such a ban, far from closing the issue of smoking in businesses, opens up a whole series of questions that we will be gradually resolved over the next few years.