What are the rules for smoking in the workplace? Employment guide

Bites Editor

7 months ago

Smoking in the workplace in South Africa is regulated primarily by the Tobacco Products Control Act, not by labour law – but how you manage it has direct consequences for health, morale, discipline, and even dismissals.

South African employers are legally obliged to protect non-smokers, control where smoking may occur, and ensure that employees can object to tobacco smoke without retaliation. At the same time, there is no “right to smoke at work”, and no automatic entitlement to paid smoke breaks. Getting this balance right starts with understanding the legal framework and then translating it into a clear, consistently applied workplace policy.

Key takeaways

Smoking in the workplace is governed mainly by the Tobacco Products Control Act 83 of 1993 and its regulations, especially Notice R975 of 2000 on smoking in public places.
Workplaces are treated as “public places”, so smoking is generally prohibited indoors, except in compliant designated smoking areas (if the employer chooses to allow them).
Employers must have a written smoking policy, must protect non-smokers from exposure to tobacco smoke, and must ensure employees can object to smoke without victimisation.
No statute gives employees a right to smoke breaks; breaks are determined by workplace policy, contracts and practice.
Case law shows that unmanaged second-hand smoke can contribute to constructive dismissal or discrimination claims where vulnerable employees’ health is affected.
New tobacco legislation, the Tobacco Products and Electronic Delivery Systems Control Bill, is in progress and is expected to tighten rules and explicitly regulate e-cigarettes and vaping products.

The legal framework – smoking in the workplace

Tobacco Products Control Act and regulations

The Tobacco Products Control Act and its amendments make it a criminal offence to smoke in a public place outside of designated smoking areas. Workplaces fall within the definition of “public place”, so employers have a clear duty to control smoking on their premises.

Key points from the Act and regulations include:

Employers may totally prohibit smoking in the workplace.
If they permit smoking, they may set aside no more than 25% of the floor space of a workplace as a designated smoking area.
Any designated smoking area must meet strict requirements (for example, physical separation from non-smoking areas, separate ventilation where reasonably practicable, and clear signage).
Employers must ensure that no person under 18 is present in any portion of the workplace where smoking is allowed.
Prescribed “No Smoking” and “Smoking Area” signs must be displayed, and employers must take reasonable steps to ensure compliance (monitoring, supervision, disciplinary measures).

Failure to comply can result in fines for both the individual smoker and the employer or person in control of the premises.

Written smoking policy – a legal requirement

The regulations explicitly require employers to adopt a written policy on smoking in the workplace.

At minimum, this policy should:

Confirm whether smoking is completely prohibited or only allowed in designated areas.
Identify the location of any designated smoking areas and their rules (capacity, hours, no under-18s, etc.).
Set expectations around smoke breaks (for example, limited to lunch and tea breaks, or unpaid time).
State that employees may object to smoke and report non-compliance without fear of retaliation.
Explain how breaches will be dealt with under the disciplinary code.

Without a clear policy, it becomes much harder to enforce rules or defend complaints.

Smoking, health and constructive dismissal

Duty to protect non-smokers

Section 24 of the Constitution guarantees everyone the right to an environment that is not harmful to their health or wellbeing. Combined with the Tobacco Products Control Act and the Occupational Health and Safety Act, this means employers have a positive duty to limit exposure to second-hand smoke at work.

If non-smokers (especially those with asthma or other respiratory conditions) are exposed to smoke because the employer fails to enforce the law, they may argue that the employment relationship has become intolerable and resign, claiming constructive dismissal.

Example from case law

In the Naudé v Stealth Marine matter, an employee with respiratory problems alleged constructive dismissal after persistent exposure to cigarette smoke at work and the employer’s failure to provide a smoke-free environment or proper smoking facilities. While every case turns on its facts, it illustrates that unmanaged smoking can create real legal risk, particularly where an employee’s health is compromised and complaints are ignored.

Vaping, e-cigarettes and future changes

Current law focuses mainly on tobacco products, but many employers now face questions about e-cigarettes and vaping in the workplace.

The existing regulations do not yet deal comprehensively with electronic delivery systems.
The Tobacco Products and Electronic Delivery Systems Control Bill aims to close this gap by regulating e-cigarettes much like traditional tobacco, extending smoke-free rules, standardising packaging and tightening advertising restrictions.

Although the Bill is still progressing through Parliament, employers should anticipate that vaping at work will be treated similarly to smoking and start aligning policies accordingly (for example, including both tobacco and electronic devices in the same “no smoking/no vaping” rules).

Smoking breaks, discipline and performance

No statutory right to smoke breaks

South African law does not grant a specific right to smoke breaks.

Employees are entitled to whatever break arrangements are set out in:

the Basic Conditions of Employment Act (for example, a 30-minute break after five hours of work),
collective agreements or sectoral determinations, and
contracts or workplace policies.

Any additional smoke breaks beyond these are a matter of employer discretion. If smoking breaks start to impact productivity, service levels or fairness, employers are entitled to regulate them.

Misconduct and poor performance

Smoking-related issues that can justify discipline include:

repeatedly leaving the workstation without permission to smoke;
smoking in non-smoking areas or ignoring safety rules (for example, near flammable materials);
tampering with fire-safety equipment.

Progressive discipline (warnings, final warning, then dismissal where appropriate) should be followed, as with any other misconduct. In high-risk environments, smoking in a prohibited area may amount to serious or even gross misconduct.

What employers should do

To manage smoking in the workplace lawfully and fairly, employers should:

Adopt a clear, written smoking policy
- Decide whether to be completely smoke-free or to provide limited designated smoking areas.
- Cover both tobacco and, ideally, vaping/e-cigarette use.
Designate and manage smoking areas properly (if you allow them)
- Ensure they comply with space, separation, ventilation and signage requirements.
- Prohibit under-18s from any smoking area.
Protect non-smokers
- Keep enclosed workplaces smoke-free.
- Respond quickly to complaints and ensure non-smokers are not victimised.
Regulate smoke breaks
- Specify when smoking is allowed (for example, only during official rest breaks).
- Make it clear that excessive or unauthorised breaks can lead to discipline.
Train managers and supervisors
- Explain the legal obligations and the content of the smoking policy.
- Ensure consistent enforcement to avoid allegations of favouritism or unfair labour practice.
Monitor legislative developments
- Keep an eye on the progress of the new Tobacco Products and Electronic Delivery Systems Control Bill and be ready to update your policy and signage when it comes into force.

What employees should know

Employees – whether smokers or non-smokers – should understand that:

There is no absolute right to smoke at work; smoking is heavily regulated and may be entirely prohibited on the premises.
Non-smokers have a right to a smoke-free environment, and employers must take reasonable steps to protect them.
If the employer provides smoking areas, employees must follow the rules, including using only those areas and respecting break limits.
Ignoring “No Smoking” signs or smoking in prohibited areas can lead to disciplinary action, up to and including dismissal in serious cases.
Employees who experience health problems or discomfort from smoke are entitled to raise concerns, and may not be lawfully victimised for doing so.

FAQs: Smoking in the workplace

1. Is smoking in the workplace illegal in South Africa?

Smoking is generally prohibited in enclosed public places, which includes most workplaces. Employers who still allow smoking may only do so in strictly controlled designated smoking areas that meet the legal requirements. Outside of those, it is a criminal offence to smoke and an offence for the employer to allow it.

2. Do employers have to provide a smoking area?

No. Employers are not obliged to provide any smoking area at all. They may choose to make the entire workplace smoke-free. If they do choose to allow smoking, they must create and manage compliant designated smoking areas and still protect non-smokers.

3. Are employees entitled to paid smoking breaks?

No specific law guarantees paid smoking breaks. Employees are entitled to the ordinary rest breaks provided for in the Basic Conditions of Employment Act and any applicable agreements. Any extra breaks to smoke are subject to company policy. Employers may require that such breaks are unpaid or limited to certain times.

4. Can an employee be dismissed for smoking at work?

Yes, in serious cases. For example, smoking in a prohibited area, especially where there are fire or safety risks, or refusing to comply with reasonable instructions about smoking, can amount to misconduct. As with any dismissal, the employer must follow a fair procedure and consider the circumstances, previous warnings and the severity of the breach.

5. What about vaping or e-cigarettes in the workplace?

Although current legislation focuses mainly on tobacco products, many employers treat vaping and e-cigarettes the same as smoking for health and safety reasons. The pending Tobacco Products and Electronic Delivery Systems Control Bill is expected to regulate electronic devices more strictly, so it is prudent to include them in your smoking policy now and require that they are only used in designated areas or not at all.