The South African legislation with regards to smoking is one of the strictest in the world. The Smoking Policy in the Workplace's rules and regulations are stipulated in the Tobacco Products Control Amendment Act 63 of 2008. The Smoking Policy must be applied within three months from the date of coming into operation of the business. This is one of the many workplace aspects that have legal implications and companies should take it into serious consideration.
Smoking Policy in the Workplace
The Smoking Policy in the workplace is not regulated by Labour Law but only by The Tobacco Products Control Amendment Act 63 of 2008. 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.
What the Tobacco Products Control Act states about Smoking Policy in the workplace:
- Employers are not obliged, whatsoever, to provide smoke breaks for smokers.
- If the employer does provide smoke breaks, he is entitled to insist that those employees compensate for time taken for ‘smoke breaks’ by working over-time without additional numeration.
- He also has the option to total up the ‘smoke breaks time’ and deduct it from employees' wages at month end.
- The employer is entitled to ban smoking completely on his building or in the workplace if he wishes to.
- Alternatively, he has a choice to designate any area of his choice to be the smoking area This could be the roof of the building or the car park.
- The Employer is under no obligation to provide an alternative smoking area in the event of inclement weather.
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In short, the employer is under no obligation to facilitate the addiction of the smoker to the drug nicotine. He is also under no obligation to facilitate the addiction of any employee who may be addicted to alcohol, narcotics and so on. While this may sound logic, it is easier said than done. Tobacco, alcohol and drugs are addictive and addicts often have difficulties to accept reality that limits their ability to enjoy their addiction.
It is important to know that in the Act the workplace is referred to as being a public place.
The employer is obligated to comply with the following regulations in the Act if he wishes to provide a smoking area:
An employer 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
c) 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 is in place
d) 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
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”.
An employer 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. He must protect non-smoking employees or he may choose to totally prohibit smoking in that place.
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MAKROSAFE has all this knowledge of the relevant legislation that they have been helping companies for many years to draft Smoking Policy plans. Contact them and they will offer you advice and help you implement yours.
Comments (7)
I want the number of the smoking policy please
2023-07-10 19:53:24Dear Elroy Thank you for your request via our website comments, we really do appreciate it... I am not sure what you mean with the "number of the Smoking Policy"...? However, you can follow this link and download it from our free download page: https://www.mysafetyshop.co.za/Products/Free-Download---Smoking-Policy
2023-07-11 08:10:03Good day. Would you kindly advise me on something. We are a small business working in the health industry, specifically in hospitals among patients, so smoking is a big no-no for our employees. We have a non-smoking policy in place, but workers still secretely smoke when getting to a worksite. We do not want to negatively impact patients' health from the lingering smoke on our workers clothes. So my question is; can we (legally) ban our employees from having tobacco products on their person during working hours? They still have their tobacco products with them at work and claim to only smoke it once they've left work. Or is there any other prevention method we can implement? We do not want to lose our contracts with hospitals beacuse of this. Thank you for your time.
2024-02-19 09:44:13Good day, Mariaan. Understanding your concern and the importance of maintaining a health-conscious environment within hospitals, it's crucial to approach this issue with a balance of empathy towards your employees and strict adherence to safety and health standards. Regarding your question about legally banning your employees from having tobacco products on their person during working hours, especially within the healthcare industry and specifically in hospitals, let's address the relevant South African laws and best practices: 2. Tobacco Products Control Act: This Act regulates smoking in public places and workplaces. It requires employers to have a written policy on smoking in the workplace, which can include restrictions deemed necessary to protect non-smokers. However, the Act itself does not specifically discuss banning employees from carrying tobacco products. Given this, here are recommendations on how you could approach the situation: - Legal Consultation: Before implementing any ban on carrying tobacco products, consult with a legal expert specializing in employment law. This will ensure that any policy you adopt is enforceable and complies with South African legislation. - Employee Engagement and Support: Engage with your employees to explain the rationale behind stricter tobacco control measures, emphasizing patient health and safety. Provide support to employees who wish to quit smoking, possibly including programs or resources as part of your workplace wellness initiatives. - Clear Communication: Communicate your policies clearly, highlighting the importance of adherence, especially in sensitive environments like hospitals. Make sure employees understand the consequences of non-compliance. Please remember to continuously engage with your employees on this matter and offer them the support they need, as this will foster a positive and health-focused culture within your workplace. Lastly, for personalized advice tailored to your specific situation, consulting with a legal expert in South African employment law is recommended.
2024-02-20 09:37:06I live in an enclosed sectional title estate with some 300 residential units. We also have a restaurant and open but roofed patio removed from the restaurant where residents can enjoy a meal or be merry and have a few drinks. I would like to know the following: In terms of RSA legislation or OHS regulations can residents smoke on the patio or is this issue entirely at the discretion of the trustees? Thanks and regards
2020-04-01 22:27:06Good day Could you please send me the smoking policy Thank you Esme Steyn
2022-02-12 13:44:50Good day I want the new smoking legislation for South Africa so I can be able to see what distance from a building or window are people allowed to smoke etc. it is at the workplace in an industrial area. Many thanks
2023-11-08 14:04:36Good Day Deon Thank you for your request via our comment page... Follow this link to download the The Tobacco Products Control Act 83 of 1993: https://www.gov.za/documents/tobacco-products-control-act#:~:text=The%20Tobacco%20Products%20Control%20Act,provide%20for%20matters%20connected%20therewith.
2023-11-09 08:01:57Good Sir/Madam I am a Centre Manager of Victorian Mall, 36 Scott Street Newcastle, northern KwaZulu-Natal. Currently I have got lot of pending cases of my staff members of contravention of Tobacco Control Act. Most of my staff members allege that it is unfair to them to be charged for non-compliance with Tobacco Control Act while there is no sign that being displayed at Victorian Mall to indicate that it is "non smoking zone". Could you please send me the "no smoking zone" posters. Kindly Regards Mr S A Zwane The Centre Manager of Victorian Mall 36 Scott Street Newcastle 2940
2023-06-13 10:52:22Dear Silomo Thank you for your request via our comments, we really do appreciate it... We have No Smoking signage available to purchase from our My Safety Shop, follow this link: https://www.mysafetyshop.co.za/Products/No-Smoking---PV1---ABS---190 Add item to CART, open CART at top of page, change QUANTITY for the amount of signs you need, press PRINT QUOTE... Once approved, return to your CART, complete the FORM and press COMPLETE ORDER, you will get a confirmation of order message, and our support team will call you and arrange the invoice for payment and delivery... Please also follow this link to download the FREE Smoking Policy: https://www.mysafetyshop.co.za/Products/Free-Download---Smoking-Policy
2023-06-14 08:10:21Good day My employer allows co workers to smoke in the office at their desks This have a very negative impact.on my health I was off sick a few times because of this My health is at stake Kindly assist Company in pretoria north I do have photos to prove Regards
2023-07-04 16:04:46Dear Antoinette Thank you for your time and effort to address this issue via our comments page, sorry to hear about your situation... This kind of behaviour is unacceptable and against the Law and should be reported to the correct Authorities... Please take the time and follow this link and report this to Department of Employment and Labour: https://www.labour.gov.za/Contacts/Minister-office/Pretoria-Office
2023-07-05 08:32:23