Smoking in the workplace is a key area of regulation in South Africa, where the country has long been a leader on the African continent in controlling tobacco use in public and work environments.

Central to the current legal framework is the Tobacco Products Control Act (Act 83 of 1993), which outlines employers’ responsibilities in managing smoking in the workplace and protecting non-smokers’ rights. However, this regulatory landscape is set to evolve with the proposed Tobacco Products and Electronic Delivery Systems Control Bill, which aims to tighten existing laws and extend controls to newer nicotine products like vapes and e-cigarettes. Employers must therefore ensure their workplace smoking policies are clear, up to date, and adaptable to upcoming legislative changes.

The Current Legal Landscape: The Tobacco Products Control Act

Under the Tobacco Products Control Act (as amended), South African employers are required to enforce strict regulations when it comes to smoking in and around work premises. Section 2 of the Act explicitly prohibits smoking in public places, including workplaces. This covers all enclosed or partially enclosed areas such as lobbies, bathrooms, corridors, and break rooms. Employers or building managers are legally responsible for ensuring that these spaces remain smoke-free. This includes putting up the required signage and making sure staff and visitors are clearly informed about the employer’s smoking policy. Employers are required to take additional steps, including, but not limited to:

  • Protecting non-smokers from second-hand smoke;
  • Ensuring that no employee is forced to work in a smoking-permitted area;
  • Never requiring staff to sign any waiver or indemnity related to smoke exposure; and
  • Allowing employees to object to smoking without fear of reprisal

Should employers choose to provide employees with a designated smoking area, the area can be no more than 25% of the total floor area, and must be physically separated from non-smoking areas, and equipped with a dedicated ventilation system that exhausts to the outside. It also needs to be clearly marked and carry health warnings in line with the law.

Failing to comply can lead to steep penalties. In terms of section 7 of the Act, employers who ignore the rules risk fines of up to R100,000, depending on the nature of the breach. Individual employees or visitors who smoke in a no-smoking area may also be fined up to R500.

While the Occupational Health and Safety Act (OHSA) 85 of 1993 does not specifically address smoking (and by extension, vaping) in the workplace, it does place a general duty on employers to provide a safe, healthy, and risk-free working environment. This obligation can reasonably be interpreted to support policies that restrict tobacco and vape use particularly in enclosed public spaces or high-risk environments such as hospitals, food production areas, and laboratories. Consequently, employers who have not yet phased out designated indoor smoking zones are strongly encouraged to do so now in anticipation of stricter future legislation.

The Future of Smoking in the Workplace: The Tobacco Products and Electronic Delivery Systems Control Bill

The Tobacco Products and Electronic Delivery Systems Control Bill (B33 of 2022), currently before Parliament, seeks to repeal the Tobacco Products Control Act in its entirety and replace it with a far more comprehensive regulatory framework. If enacted, the Bill will bring vaping products and e-cigarettes under the same legal scrutiny as traditional tobacco, including restrictions on their use in public and workplace settings. In anticipation of this, employers are advised to update their workplace smoking policies to explicitly include electronic delivery systems, such as vapes and heated tobacco devices. Treating these products like traditional cigarettes now, by prohibiting their use in enclosed spaces and clearly communicating this to staff, will not only align with the spirit of the upcoming legislation but also reinforce a safer, more health-conscious work environment.

Conclusion

Smoking in the workplace remains a central focus as South Africa moves toward a more robust and inclusive regulatory framework on tobacco and nicotine products. Employers now have both a legal duty and a proactive opportunity to lead in promoting healthier, smoke-free work environments.

The current Tobacco Products Control Act already places substantial obligations on employers, and the proposed Tobacco Products and Electronic Delivery Systems Control Bill signals an even stricter approach, particularly regarding vaping and electronic delivery systems. By updating policies on smoking in the workplace, clearly communicating expectations to employees, and phasing out indoor smoking areas, employers can stay ahead of legal changes, minimise health risks, and reinforce a culture of wellbeing. In short, now is the time to future-proof your workplace smoking policy—before legislation makes it mandatory.

In conclusion, while South Africa’s laws on vaping and tobacco use are still developing and evolving, employers are therefore urged to revisit their current workplace policies and align them with the restrictions already enforced in comparable public spaces.

By proactively developing and implementing clear, consistent non-smoking policies that effectively treat tobacco and vaping similarly, employers can mitigate future risks, promote consistency, and demonstrate proactiveness in response to an already potentially shifting regulatory and public health landscape.

Need help updating your smoking in the workplace policy? Get expert guidance on aligning with current laws and preparing for upcoming legislation. Contact Invictus Group today and future-proof your workplace compliance.