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The Global Adult Tobacco Survey undertaken by the South African Medical Research Council in 2021 revealed that 11.1 million adults (41.2% of all men, and 11.5% of all women surveyed) smoke tobacco. But do employers have to allow smoke breaks for workers? Can they ban smoking completely? Scorpion explains what SA’s tobacco and labour laws have to say.
There are two specific laws to look at:
The Tobacco Products Control Act plays a significant role in regulating smoking in the workplace. It is set up to protect non-smoking staff. Employers must, by law, have a smoking policy in place that workers can refer to. While this policy may not go above the law, it must explain things such as if smoking is allowed at the workplace, as well as where it is and is not allowed.
Employers Can Ban Smoking in the Workplace Completely
The law prohibits smoking in enclosed public places, which includes workplaces. In fact, the Tobacco Products Control Act allows an employer to ban smoking in the workplace completely – by law the employer does not have to accommodate smokers.
Designated Smoking Areas and Smoking in Work Vehicles
Employers may establish designated smoking areas. Smoking is not allowed indoors, and these smoking areas must be well-ventilated and situated away from non-smoking areas. The employer does not have to provide areas for smokers in bad weather – ie if it rains, hails, etc. and the smoking area is not undercover, smokers have no right to insist on any provisions from the employer.
It’s important to know that the regulations extend to company vehicles used for work as well – smoking is prohibited in work vehicles to ensure the health and safety of all passengers.
According to the BCEA, all employees are entitled to a rest period of at least 30 minutes after working continuously for a period of five hours – whether you use this time to smoke or not. It does not explicitly designate intervals for smoke breaks.
Employers Do Not Have to Allow Smoke Breaks
Even if the employer allows smoking, they are under no obligation to allow workers specific smoke breaks. If the worker takes these anyway, he/she could face disciplinary action.
Should an employee want to take smoke breaks in a workplace that allows smoking, it will have to be through a mutual agreement between the employer and the employee (or as regulated by the employer’s smoking policy). Both parties must find an arrangement that accommodates the operational needs of the workplace while affording the employee sufficient time to refresh.
In the eyes of the law, not yet. However, legislation is currently underway that could change this. Despite the legal definition, employers have the right to put in place policies that restrict or ban smoking and vaping alike, and employees must familiarise themselves with this policy to avoid getting into trouble.
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*This is basic legal advice only and should not be relied on solely. Information is correct at the time of publication.
Date added: 8 August 2023
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