On 9 May 2018, the draft Control of Tobacco Products and Electronic Delivery Systems Bill was published for public comment. Among other changes the bill plans to introduce two a zero-tolerance policy on in-door smoking in public places, as well as the requirement that smokers must be at least 10 metres away from public entrances.
It also aims to address the changes that technology has brought on the industry. With particular reference to vapes, e-cigarettes and other kinds of electronic nicotine delivery systems.
“Not only are technological changes at the heart of this bill, but the ever-increasing need to safe guard the health and well-being of the general public,” said Mohsina Chenia, executive consultant at law firm Cliffe Dekker Hofmeyr.
“Employers have been placed in an onerous position under the proposed bill and face fines and even imprisonment where they are deemed to fall short of their obligations,” she said.
What do employers need to know?
According to Chenia there are two definitions that are of importance:
Firstly, the definition of “smoke” has been expanded to mean “inhale, exhale, hold or- (a) otherwise have control over an ignited tobacco product or a heated but not ignited tobacco product that produces an emission of any sort; or (b) operate or otherwise have control over an electronic delivery system that produces an emission of any sort.”
Secondly, “workplace” means “any place in or on which one or more persons are employed and perform their work, whether for compensation or voluntary, and includes – (a) any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area used during or incidental to the course of employment or work: (b) any vehicle which is available for use for business or commercial purposes: and (c) any vehicle registered to the government.”
“The Act goes further in that s2(1) makes reference to an enclosed workplace,” said Chenia.
“The definition of enclosed space includes an area that is open or closed and an area that has a roof or not. For most of us, this would mean a company bar or even where the canteen area extends onto a balcony.
“Whilst this might have been used as a smoking area before, it will not qualify now. Caution should be raised to the entrances to buildings, the undercover parking areas and the nooks or crannies frequented by smokers presently,” she said.
She also notes that Section 2(3) places responsibility at the feet of the owner of or person in control of a public place or workplace to designate the whole or part of any outdoor space as an area where smoking is prohibited.
And the employer bears the duty to ensure no person smokes in that area. Furthermore, employers are required to adhere to the public announcements and signage prescribed by the bill, she adds
“To any employer whose attention has not already been ignited, we lastly draw your attention to s2(6) which speaks specifically to employers,” she said.
This section states that the employer must ensure that:
- Employees may object to smoking in the workplace in contravention of this act, without retaliation of any kind.
- Employees who do not want to be exposed to tobacco smoke at the workplace, are not so exposed.
- It is not a condition of employment, expressly or implied that any employee is required to work in any portion of the workplace where smoking is permitted by law.
- Employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted by law.
- Most importantly, any employer who contravenes or fails to comply with the above will be liable on conviction to a fine or imprisonment not exceeding a period of one year or both a fine and such imprisonment.
“The purpose behind these changes is to bring South Africa in line with the World Health Organisation’s Framework Convention on Tobacco Control.
“We would strongly recommend that employers take this bill and its sanctions as a smoke signal indicating the changes to come and start making the necessary changes and accommodations to their businesses,” she said.