On 9 May, the draft Control of Tobacco Products and Electronic Delivery Systems Bill was published for public comment.
Among other changes, the bill plans to introduce 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 smoking in the work place, which is defined in the act as ‘any place in or on which one or more persons are employed and perform their work, whether for compensation or voluntary’.
According to a report by The Star, this includes employers who smoke in the presence of their domestic workers or gardeners on their premises. In addition it notes that you may not smoke in your home if you use it for teaching, tutoring or commercial childcare.
Speaking to the paper, the Health Department’s Popo Maja said the bill sought to ensure that employees were treated equally – including those working in private spaces.
“A private space used as a workplace will be regulated like other workplaces,” Maja said.
He added that employees had the right to object without fear of retaliation if they were exposed to smoke. Workers were already empowered to stand up for their rights if they refused to be exposed to tobacco smoke.
“The bill is just making a policy statement. The regulations will be developed to unpack the intention of the clause,” he said.
What do employers need to know?
As part of an analysis of the new regulations in May, Mohsina Chenia, executive consultant at law firm Cliffe Dekker Hofmeyr explained that the employer bears the duty to ensure no person smokes in a work area.
According to Chenia, the bill 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,” she said.
“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.”