ON 9 May 2018, the draft Control of Tobacco Products and Electronic Delivery Systems Bill was published for public comment.
The Bill 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.
According to 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 added that there are two definitions contained in the Bill that are of particular 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. 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,” said Chenia.
“Caution should be raised to the entrances to buildings, the undercover parking areas and the nooks or crannies frequented by smokers presently.”
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.
Chenia also highlighted s2(6) which speaks specifically to employers. 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.
It also stipulates that employees who do not want to be exposed to tobacco smoke at the workplace, must not be so exposed and prohibits employers from making it 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. Neither are employees required to sign any indemnity for working in such places.
Most importantly, warns Chenia, 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,” Chenia said.