CIS Legal Update - September 2013: The Legality of Smoking Lounges in Offices Following the Passage of the Tobacco Control Law in Russia

by Dechert LLP
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In an attempt to address and potentially reduce Russia’s incredibly high smoking rate, Russian legislative authorities have enacted a new law that aims to effectively restrict tobacco smoking in certain areas. However, Federal Law No. 15-FZ (the “Tobacco Control Law”), which entered into force on June 1, 2013 (with certain exceptions) has already proven confusing as many struggle to understand the exact breadth of the restrictions it imposes.

While the Tobacco Control Law sets forth relatively clear prohibitions on smoking in public areas and premises utilized for public services, it leaves much room for interpretation with respect to the restrictions it places on smoking in business/administrative buildings. In particular, no smoking is permitted in “work places and work areas organized on the premises” (in Russian: ?? ??????? ?????? ? ? ??????? ?????, ?????????????? ? ??????????). This restriction is not new per se considering Federal Law No. 87-FZ dated July 10, 2001 (as amended) (the “Previous Law”) imposed a similar restriction on smoking in work places. However, in contrast to the Previous Law, the Tobacco Control Law makes no exceptions for premises specifically designated for smoking, such as smoking lounges. Thus, it is not entirely clear as to whether employers can maintain smoking lounges in business centers or other office buildings (i.e. in areas different from “work places” and “work areas”).

The Tobacco Control Law also fails to adequately define “work places” and “work areas” in a concrete, substantive manner. As these terms are defined quite broadly in Russian law, they can be interpreted differently according to the context in which they are used. A “work place”, as defined in Article 209 of the Russian Federation (RF) Labor Code, is designated as the place in which the employee must be present or to which the employee needs to arrive in connection with his or her work, and which is directly or indirectly managed (or controlled) by the employer. The term “work area” is defined in construction regulations and state standards as the space up to two meters above the floor or above the space in which the employee is present on a temporary or continuous basis. Given the broad definitions of these two terms and depending on the context in which they are used, they can refer to the employer’s entire premises or be interpreted in a much narrower sense to refer to the specific space (workshop, room, table, etc.) where the employee performs his or her work.

This apparent ambiguity requires a much closer reading of the Tobacco Control Law in order to appropriately ascertain the scope of the new smoking restrictions. While the legislation imposes a mandatory restriction on smoking in “work areas” and “work places”, it provides employers with the right to prohibit, at their own initiative, smoking on the “territories” and “premises” in which they operate. In this case, there appears to be a distinction made between the terms “territories” and “premises” – where smoking can be prohibited by the employer – and “work place” and “work area” – where smoking is prohibited by the Tobacco Control Law. This implies that there could be areas within the premises of a building that constitute neither a “work place” nor a “work area”, thereby providing employers with the opportunity to designate certain areas for smoking.  

If this is indeed the case, it could be logically assumed that smoking lounges can remain in offices, business centers and other similar premises. The requirements for these so-called “isolated premises” designated for smoking (i.e., smoking lounges) were just recently implemented by the Order of the RF Ministry of Regional Development and RF Ministry of Health Care No. 321, dated July 31, 2013 (the “Order”).

In order to avoid the classification of “premises of a smoking lounge” as a “work place” or “work area”, we recommend that smoking lounges: (i) are isolated; (ii) are equipped with ventilation systems and provide artificial daylight; (iii) are equipped with fire extinguishers, ashtrays and informational materials on the dangers of tobacco smoking, pursuant to the requirements of the Order; (iv) meet fire safety, sanitary and hygienic requirements; and (v) are marked with specific signs expressly indicating that the premises are intended only for smoking and do not constitute parts of work places/work areas. For smoking lounges located on leased premises, employers must work with the owner of the premises in order to set out an agreement for both the location and purpose of the smoking lounges. Finally, it is important to ensure that smoking lounges are constructed (or renovated) in full compliance with Russian law.

Employers seeking to provide legally-sanctioned areas for smoking can also consider the possibility of installing smoking booths instead of setting out spaces for smoking lounges. Smoking booths usually have an independent ventilation system, are portable, and do not require any renovation of the premises in which they are installed. Should any smoking booths be installed in the office/administrative premises, we recommend that they are installed, marked and equipped in the same manner as discussed above in respect of the smoking lounges (to the extent that it is applicable).

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Dechert LLP
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