The Tobacco Products and Electronic Delivery Systems Bill 2018 (“the Bill”) prohibits smoking in any prescribed outdoor public place and, more importantly from an employment law perspective, at the workplace, where smoking may pose a health, fire or other hazard.
Notably, the Bill will have a broad application as the prohibition on smoking will not only apply to conventional methods of smoking, but also to electronic smoking devices, such as, e-cigarettes, vaping and e-cigars.
Section 1 of the Bill defines “workplace” as “any place in or 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 cause of employment or work”.
The Bill also states that smoking within a prescribed distance from the entrance/exit of a building or window will be unlawful, which rules out smoking on a company balcony, in an undercover parking area or even a company car. This prohibition is not only applicable to employees at the workplace, but it also requires employers to ensure that no person smokes in any of these areas described.
The Bill imposes further obligations upon an employer. Amongst other things, it must ensure that:
· employees who do not want to be exposed to tobacco smoke are not exposed
· it is not an express or implied condition of employment that employees are required to work in an area of the workplace where smoking is legally permitted
employees are not required to sign any indemnity for working in any area of the workplace where smoking is legally permitted
It is, therefore, prudent that employers appreciate their prospective responsibilities and the possible risk that they could be exposed to should they fail to comply with this Bill, the risk being that they could be held liable upon conviction of an offence to a fine or imprisonment of up to one year or both. Employers would be best advised to adapt their internal smoking policies to appropriately align themselves with the new Bill.
Smokers beware – tobacco and the law
The South African law on tobacco is constantly tightening up on ways to stop smokers from lighting up.
Tobacco Products Control Amendment Act poses strict smoking laws, which include:
· A zero-tolerance policy on in-door smoking in public places.
· A ban on outdoor smoking in public places and at least 10 metres away from public entrances.
· The removal of all signage on cigarette packaging aside from the brand name and warning stickers.
· S hops and retailers are banned from any public displays of cigarettes.
Current laws
In the meantime, make sure that you are obeying the current laws around smoking:
· You can’t buy or sell tobacco products if you are under 18 years old.
· You can’t smoke in a car if one of the passengers is a child under 12 years old.’
· Smoking in partially enclosed public places, such as covered patios, verandas, balconies, walkways or parking areas, is illegal.
· Smoking on premises that are used for commercial childcare activities or for schooling or tutoring is illegal. This includes private homes that are being used to run crèches.
· No more than 25% of a public space can be a designated smoking area. A public space can be defined as a building or even a means of transport such as a train.
· Any smoking area must be physically isolated and separated from the rest of the public space. This means it must be enclosed and the smoky air vented to the outside.
· Sugar cigarettes in cute packaging that were sold to children as a sweet treat, have now been banned.
· No smoking is allowed in cinemas, on domestic flights in the country or on any public transport.
Punishment for breaking these laws
Be careful, going against the law will cost you, not just your health, but your money as well.
For example, the owner of a restaurant, pub, bar or workplace can be fined up to R50 000 if his/her premises breach the smoking laws.
The fine for any smoker lighting up in a non-smoking zone can be up to R500.
If someone is caught selling a ‘loose’ cigarette they can be fined up to R100 000.
The strict laws around smoking will be getting stricter and will be actively enforced including by the use of anonymous tip off lines
