Recent amendments to the Tobacco Products Control Act, 83 of 1993 ("the Act"), which came into effect on 21 August 2009, introduce the potential for hefty fines to be imposed on both employers and employees who contravene the provisions of the Act.
A useful reminder to employers of the provisions of the Act (and its recent amendments as they apply to employers and employees) is summarized below:
* No person may smoke in a "public place", which is defined to include a "workplace". A "workplace" includes "any indoor, enclosed or partially enclosed area in which employees perform the duties of their employment" and further includes "any corridor, lobby, stairwell, elevator, cafeteria, washroom or other common area frequented by such employees during the course and scope of their employment."
* The definition still excludes any area specifically designated by the employer as a smoking area. Such an area may not exceed 25 percent of the total floor area of the public place and must be separated from the rest of the public place by a solid partition and an entrance door on which the sign "SMOKING AREA" is displayed, written in black letters (at least 2cm high and 1.5cm in breadth) on a white background. The ventilation of such area must be directly exhausted to the outside.
* An employer has an obligation to ensure that:
o employees may object to smoking in the workplace in contravention of the Act without retaliation of any kind;
o employees who do not want to be exposed to tobacco smoke in the workplace are not so exposed;
o 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;
o employees are not required to sign any indemnity for working in any portion of the workplace where smoking is permitted;
o no person under the age of 18 years is present in any portion of the workplace where smoking is permitted;
o prescribed signs are displayed and shall make the prescribed public announcements in order to inform any person who enters or is in such place or area of any prohibition on smoking. The prescribed messages designating the smoking and non-smoking areas must include the message, "SMOKING OF TOBACCO PRODUCTS IS HARMFUL TO YOUR HEALTH AND TO THE HEALTH OF CHILDREN, PREGNANT OR BREASTFEEDING WOMEN AND NON-SMOKERS. FOR HELP TO QUIT PHONE (011) 720 3145" and the warning, "ANY PERSON WHO FAILS TO COMPLY WITH THIS NOTICE SHALL BE PROSECUTED AND MAY BE LIABLE TO A FINE.";
o employers must have a written policy on smoking in the workplace and are also free to totally prohibit smoking in the workplace; and
o any employee convicted of failing to comply with the obligations imposed by the Act or its regulations may be liable to a fine not exceeding R50 000. Similarly, any employer so convicted is liable to a fine not exceeding R100 000.
Employers are encouraged to take note of, and ensure compliance with, these provisions in order to avoid prosecution. Section 2(7) of the Act incorporates, into Section 2 of the Act, Sections 80 to 89 of the National Health Act, 2003 ("the NHA"). These sections provide for the appointment of health officers whose duty it is to monitor and enforce compliance with the NHA and, by its incorporation, the Act.
Sections 80 - 89 of the NHA give inspectors wide-ranging powers to, inter alia, inspect premises, question any person that may have information relevant to the inspection and request documentation. They are, accordingly, entitled to request a copy of any employers smoking policy. Any person who unlawfully prevents entry into a premises, obstructs or hinders the health officer, refuses to provide a health officer with information, knowingly gives false or misleading information to the health officer or fails to comply with a compliance notice issued to him or her commits an offence and is liable, on conviction, to a fine and/or to imprisonment not exceeding 5 years.
It can hardly be said that compliance with the Act is an overly cumbersome process. Despite this, and despite the fact that there may be questions regarding the capacity of health officers to enforce the provisions of the Act, it is strongly advised that employers take all reasonable steps to ensure compliance. If not for the threat of hefty fines that may be imposed, then at least in order to avoid dissatisfaction, uneasiness and uncertainty amongst smoking and non-smoking employees alike.
Written by: Brett Abraham, Candidate Attorney at Webber Wentzel