By Jan du Toit
Smoking in the workplace remains a topic of heated debates between smokers and non-smokers. This is not because employers allow employees to smoke in non-designated areas, but rather as a result of the amount of time employees are allowed to smoke during working time.
Smoking in the workplace is regulated by the Tobacco Products Control Act, as amended in 2008. In terms of this Act an employer may designate an area inside a building as smoking area. There are certain conditions associated with such an area in terms of the Act.
- The area may not exceed 25% of the total floor space of the building.
- The area must be an area where non-smokers are not expected to enter into or pass through in order to perform their normal duties.
- There must sufficient ventilation and a standard notice outside the smoking area that warns smokers of the health implications of smoking.
If necessary the employer may, based on safety considerations even regulate smoking outside of buildings. It is recommended that employees are not allowed to smoke within 8 meters from any buildings, not in front of doors leading into a building or open windows, passages, balconies or covered parking areas.
During the past couple of years the e-cigarette became increasingly popular amongst smokers that are trying to quit smoking. These devices are currently not regulated by legislation as a result of the fact that no tobacco is used in these devices. Instead of tobacco nicotine drops are used.
Government however recently announced that it is considering legislation with regards to the use of e-cigarettes in public areas, especially since the long term health implications of the inhalation of nicotine vapor has not yet been established. In the absence of legislation in this regard, employers are allowed to introduce workplace policies with regards to the use of e-cigarettes in the workplace.
Since the device looks like a real cigarette and releases a vapor resembling smoke, such a policy may be necessary to prevent visitors from assuming that they have entered a smoking area. The vapor released by these devices may also irritate people that are sensitive to such pollution and may also encourage tobacco smokers to take more frequent smoke breaks.
Legislation is silent on how many smoke breaks an employee may take during working time. As such it is recommended that employers introduce workplace policies regulating when and where employees are allowed to smoke. If the aforementioned is not controlled, it may result in the employer paying for time that employees are not working. Employers are therefore advised to consider the impact that unregulated and paid smoke breaks may have on the operations of the company. If a smoker that for instance consume a packet of cigarettes per day is allowed to smoke whenever he wants to, it may well result in one smoke break every hour of the working day.
Smoke breaks lasts on average about ten minutes, not taking into consideration the time that it takes an employee to get to the smoking area and back. During a typical 9 hour working day such an employee will only take three unpaid smoke breaks during the lunch and tea times. This means that there may well be six ten minute breaks during the rest of the day that the employer will pay for. Over a period of 12 months, an employee that works 5 days per week will get paid in total for 28 working days to smoke. Even if one halves this it still equates to 14 working days per smoker per year that the employer subsidizes. Even if one halves this ….. Could discrimination be argued by non-smokers under such circumstances?
Jan du Toit can assist employers with IR and HR related services and can be contacted for a consultation at jand@labourguide.co.za.
