The Tobacco Products Control Act provides for the protection of non-smokers – it does not provide any benefit or protection for smokers.
In addition, smoking in the workplace is not regulated by Labour Law but only by the above-mentioned Act.
In terms of this Act, the employer is obliged to take steps to protect his non-smoking staff from the cigarette smoke of the smokers.
There is no obligation whatsoever on the employer to provide smoke breaks, and indeed if he does provide smoke breaks he is entitled to insist that those employees must work in the time taken for ’smoke breaks’ after hours, without additional remuneration, or he can total up the ‘smoke breaks time’ and deduct it from wages at month end.
The employer is entitled to ban smoking completely on his building or in the workplace if he wishes to, and he can designate any area of his choice to be the smoking area.
This could be the roof of the building, or the car park, and the employer is under no obligation to provide an alternative smoking area in the event of inclement weather.
In short, the employer is under no obligation to facilitate the addiction of the smoker to the drug nicotine, just as he is under no obligation to facilitate the addiction of any employee who may be addicted to alcohol, narcotics and so on.
When you consider that these no obligation on the employer to provide an alcoholic employee with ‘drink breaks’, why should there be an obligation on him to provide ’smoke breaks’ to an Employee who is addicted to nicotine?
The employer is obligated to comply with the following regulations in the Act if he wishes to provide a smoking area:
Section 3: Tobacco Products Control Act:
Note: A “workplace” falls within the definition of and is regarded as a “public place.”
An employer, owner, licensee, lessee or person in control of a public place may designate a portion of a public place as a smoking area, provided that-
a) the designated smoking area does not exceed 25% of the total floor area of the public place;
b) the designated smoking area is separated from the rest of the public place by a solid partition and an entrance door on which the sign “SMOKING AREA” is displayed, written in black letters, at least 2 cm in height and 1,5 cm in breadth, on a white background;
c) 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;
d) the message: “SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NONSMOKERS. FOR HELP TO QUIT PHONE (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
e) 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”.
Section 6, 7, 8, 9: Tobacco Products Control Act.
6) An employer, owner, licensee, lessee or person in control of a public place must ensure that no person smokes anywhere other than in the designated smoking area in that public place.
7) An employer must ensure that-
a) employees who do not want to be exposed to tobacco smoke in the workplace are protected from tobacco smoke in that workplace; and
b) employees may object to tobacco smoke in the workplace without retaliation of any kind.
8) Employers must have a written policy on smoking in the workplace, and the policy must be applied within three months from the date of coming into operation of the Tobacco Products Control Amendment Act, 1999 (Act No. 12 of 1999).
9) 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.
