SMOKING IN THE WORKPLACE

The debate around smoking in the workplace is a very sensitive one, especially where the majority of employees or the CEO is a smoker, and where smoking has always been allowed in offices and factories.

However, times have changed and new legislation has been promulgated, so we all need to comply with the laws of the country, irrespective of whether we are for it or against it.

The Occupational Health and Safety Act also alludes to the prohibition of smoking, with specific reference to areas where flammable liquids are stored or used, where employees are exposed to fumes, dust, or soot, and working with Hazardous Chemical Substances.

The Tobacco Products Control Amendment Act (TPCA Act) was promulgated to protect the non-smokers in any place from inhaling the nicotine smoke created by the smokers (commonly termed passive smoking.) By allowing non-smokers to be exposed to the smoke of smokers in the workplace, the Employer can be held legally liable for the smoking related diseases acquired by the non- smoker, and criminally liable for not complying with legislation.

The TPCA Act specifically addresses the protection of non-smokers in the workplace in Regulation 7, which states “that employees who do not want to be exposed to tobacco smoke in the workplace must be protected from tobacco smoke in the workplace” and “that employees may object to tobacco smoke in the workplace without any retaliation of any kind.”

There are 2 scenarios that need to be looked at.
1) Where no provision is made for smoking areas and smoking is allowed
This creates problems as the non-smoker has a right to be protected, and they in effect have the right to complain, and report to the authorities, and even have the right to refuse to work if smoking is not prohibited by the employer.

2) Where smoking areas are provided
This create problems as the non-smoker has to work whilst the smoker has frequent smoke breaks. If a smoker smokes 10 cigarettes per day at work, he is in effect having an extra 20 days of non-productivity per year, which the non-smoker spends working.

A smoker may not use his/her office as a designated smoking area, as a non-smoking employee or cleaner or maintenance person may have to enter that office.

There is no legal requirement to provide a smoking area in the workplace, so some employers allow their employees to smoke outside the front entrance, which is a transgression of the Act, which stipulates that no person shall smoke within 5 metres of any door that could open on to the workplace, and also exposes non-smoking clients and visitors to passive smoking. If you decide to make a smoking area available, it must comply with the regulations, in terms of placement, ventilation etc.

As with all lung related diseases, it takes a long time for the symptoms to manifest, and it would really be a very risky affair for an employer to allow smoking in the workplace, as the long term liabilities are horrendous.

The penalties for contravening the TPCA Act are:
R 20 000 for the first offence,
R 200 000 for the second offence, both payable by the CEO of the Company.

In terms of General Notice Regulation GNR 975 in Government Gazette 21610 of the TPCA Act, sub regulation 9, “any employer in control of any place may totally prohibit smoking in that place.”

Therefore, the solution to the smoking/non smoking debate is a simple one:

The employer should prohibit all smoking on the premises and within 5 metres of any door that leads into the workplace. The smokers can then smoke in their own tea or lunch times outside the perimeter of the premises, and the employer does not have to worry about fines, fires, explosions, criminal prosecution, and civil liability into the future.