Smoking at work – a right or a privilege?

Smoking at work has become less socially acceptable in recent years, and the promulgation of “anti-smoking” legislation is one of the primary reasons for this change in attitude. No longer do we see people smoking in offices, classrooms, in cars with children as passengers, restaurants, shopping malls or movie theaters.

Smoking at work – The Legal Duties of Employers

The legalities regulating smoking in the workplace, however, remain a contentious issue. Many employees believe that they have a right to smoke at work, albeit in designated areas and even at designated times.

The point of departure of the controversial piece of legislation called “The Tobacco Products Control Act 83 of 1993” is that it acknowledges that the use of tobacco is extremely injurious to the health of smokers, non-smokers and has caused widespread addiction in society.

However, of importance for the workplace is that employees who do not want to be exposed to tobacco smoke in the workplace must not be exposed thereto.

The requirements as set out in the Act of importance to workplaces are as follows:

  • The employer must display the prescribed signage to inform any person who enters the premises of any prohibition on smoking at work;
  • Employees may object to smoking in the workplace in contravention of this Act without retaliation of any kind;
  • It can never be a condition of employment, expressly or implied, that any employee is required to work in any portion of the workplace where smoking is permitted; and
  • Employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted.

Smoking at work

If an employer designates a smoking area in the workplace, it needs to comply with the following requirements:

  • A sign ‘SMOKING AREA’ must be displayed, written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background;
  • The ventilation of the designated smoking area is such that air from the smoking area is directly exhausted to the outside and is not re-circulated to any other area within the public place;
  • The message: ‘SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS. FOR HELP TO QUIT PHONE (011) 720 3145(011) 720 3145‘ is displayed at the entrance to the designated smoking area, written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background; and
  • Notices and signs indicating areas where smoking is permitted and where it is not permitted must be permanently displayed and signs indicating that smoking is not permitted must carry the warning: ‘ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE’

An employer must ensure that no person smokes anywhere other than in the designated smoking area in that public place, and must have a written policy on smoking in the workplace.

Must employees be allowed to smoke at work?

The answer to this question is quite simply – no. Many employees carry the misconception that it is their right to choose to smoke, and should therefore be allowed to smoke at work. This assumption is not accurate.

The Act clearly and expressly states that any employer, owner, licensee, lessee or person in control of any public place or part of a public place may totally prohibit smoking in that place. Therefore, the employer may ban smoking at work entirely.

Since the maximum penalty employers may incur for non-compliance with any provision of this Act is R 1 million, it will not be surprising if we see less workplaces allowing smoking in the future. This will prevent employers from having to constantly ensure that the provisions of this Act are being adhered to in order to avoid being penalised.

It is quite clear that being allowed to smoke at work is not a right, but a privilege.

Written by Natalie Graaff

Natalie Graaff

Email: legalteam@steamlcs.com
Tel: +27 12 809 4210

3 Comments

  1. Salatiso
    Salatiso September 22, 2014 at 4:38 pm .

    Good Day

    Thank you for the article, just a couple of issues which I’m hoping you can clarify;
    1) Section (1)(a)(ii) of the aforementioned Act refers to a ‘prescribed’ distance; what is this distance and where is it prescribed?
    2) Section (2) requires an employer “shall ensure that no person smokes in that place or area”; What is deemed to satisfy this duty, is posting a sign enough or must there be enforcement as well?

    Thanks

  2. Natalie
    Natalie September 23, 2014 at 4:25 pm .

    Good day Salatiso,

    At this stage, the ‘prescribed distance’ is 5 meters, and is contained in Regulations to the Act.
    Further, there must be enforcement, so you should designate an area which contains the prescribed signage, but ensure that the employees face disciplinary action should they contravene the requirements.

    I hope this assists you.

  3. Salatiso
    Salatiso October 7, 2014 at 2:48 pm .

    Thank you Natalie for the feedback, I really appreciate it.

    Small thing though, which of the regulations contain the distance and the specific section thereof?

    Thanks again.

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