In line with the World Health Organisation’s Framework Convention on Tobacco Control, the South African legislature has drafted the Control of Tobacco Products and Electronic Delivery Systems Bill 2018 (“the Bill”). The Bill seeks to regulate public smoking, smoking in the workplace and the sale and advertising of tobacco and various electronic cigarettes. In the employment arena, the Bill introduces onerous obligations on employers with regards to workplace smoking: it prohibits smoking in workplace areas where it would pose a health, fire or other hazard. The failure of employers to create smoking policies in accordance with the Bill may result in fines and even imprisonment.
The Bill defines the “workplace” as:
“…any place in or on which one or more persons are employed and performs their work, whether for compensation or voluntary, and includes –
- any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area used during or incidental to the course of employment or work;
- any vehicle which is available for use for business or commercial purposes; and
- any vehicle registered to the government.”
The definition of “smoke” has been expanded in the Bill to include electronic cigarettes and vapes. The Bill defines “smoke” as:
“Inhale, exhale, hold or-
- otherwise have control over an ignited tobacco product or a heated but not ignited tobacco product that produces an emission of any sort; or
- operate or otherwise have control over an electronic delivery system that produces an emission of any sort.”
The Bill further prohibits smoking in any open-air or enclosed spaces and any area within 10 metres from the entrance or exit of a building or window. This provision seeks to regulate common areas in a workplace such as a balcony or undercover parking area that smokers frequent during the day. This prohibition is applicable to any person at the workplace, which means that employers have to ensure that clients and visitors do not smoke in any of these areas either. The Bill states that employers bear the responsibility of ensuring that clients or visitors to a workplace are informed that no smoking is permitted in the specified workplace areas. An employer may also designate any outdoor space as an area in which smoking is prohibited with the requisite signage as prescribed by the Bill.
The Bill imposes further obligations on employers to ensure that:
- Any employees that do not want to be exposed to tobacco emissions are not exposed;
- It cannot be a condition of employment that any employee is required to work in an area in the workplace where smoking is allowed in terms of the law; and
- Employees cannot be expected to sign any indemnity for working in any area of the work place where smoking is permitted.
It is important that employers draft / revise smoking policies to be in line with the new Bill if and when it is enacted.