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Should Employers Ban E-Cigarettes in the Workplace?

By Joanne Deschenaux  2/21/2014
 

The popularity of electronic cigarettes (aka e-cigarettes) continues to increase across the country. An e-cigarette is a battery-powered device that provides the user with inhaled doses of a vaporized liquid. Generally, the vapor contains nicotine and is inhaled as an alternative to a tobacco cigarette. However, some e-cigarettes produce flavored vapor that does not contain nicotine.

E-cigarettes are usually made of plastic or metal and often look similar to a tobacco cigarette, but no smoke is emitted. E-cigarette sales are expected to top $1 billion annually in the next few years.

Under federal law, e-cigarettes are not considered drug or medical devices and, thus, are not subject to Food and Drug Administration (FDA) import limitations. The U.S. Department of Transportation interprets federal regulations that prohibit smoking in airplanes to apply to e-cigarettes.

Although 29 states and the District of Columbia have laws prohibiting smoking in the workplace, most do not specifically include e-cigarettes. For example, Ohio’s workplace ban applies to “smoking,” which means “inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant.” E-cigarettes, however, do not burn tobacco.

A few states and municipalities have passed legislation explicitly restricting the use of e-cigarettes. Chicago recently passed an ordinance, effective April 29, 2014, that will prohibit the smoking of e-cigarettes in enclosed public places and enclosed places of employment. New York City, Arkansas, New Jersey, North Dakota and Utah also include e-cigarettes in their indoor-smoking regulations. 

Pros and Cons of Workplace Bans

The American Lung Association has expressed concern about e-cigarettes after a 2009 FDA study found toxic cancer-causing chemicals in several e-cigarettes on the market. The FDA indicated that it would issue proposed rules in November 2013 but has yet to release them.  

In the absence of legal restrictions on the use of e-cigarettes in the workplace, employers are free to create their own policies to address their use, according to Sara Boyns, a lawyer at Fenton & Keller in Monterey, Calif. “Generally speaking, employers are free to set reasonable restrictions on employees' activities in the workplace,” she said. “For example, it is typical for employers to restrict cellphone use, social networking, and other activities and conduct that could interfere with employees' ability to do their jobs or disrupt the workplace.”

Many employers are electing to ban e-cigarettes indoors or in the work area or, alternatively, say that they can be used only in designated smoking areas outside of the work facility, Jay Hux, an attorney with Fisher & Phillips in Chicago, told SHRM Online. These devices contain nicotine as well as detectable levels of known carcinogens and toxic chemicals, and prohibiting their use in the workplace eliminates the risk of any complaints from nonsmoking co-workers, customers or others annoyed by the vapors.

 “It can be as simple as updating your policies to more broadly define smoking to include e-cigarettes,” he said.

But before making a decision to limit or ban an activity in the workplace, an employer should first weigh the costs and benefits. Because prohibiting certain activities may affect employee morale and productivity, any ban should be based on a legitimate business need, Boyns said.  

“You do have discretion, and I don’t think it’s necessarily a one-size-fits-all decision,” Hux said.

“We don’t know fully what the health ramifications of e-cigarettes are,” he noted. “They may not be the safest product on the market.” It may seem more consistent with your anti-smoking policy to ban e-cigarettes, he added.

There are also arguments against banning them, he said. “Employees who take long smoke breaks are less productive. If you require employees who use e-cigarettes to take breaks, they may be, as a practical matter, less productive.”  

In addition, many of those who rely on e-cigarettes in the workplace may do so because they are trying to quit smoking or not to light up the real thing during the day. E-cigarettes may help workers smoke fewer cigarettes.

“Employees may resent not being able to do something they consider a step in the right direction—if not cutting out smoking altogether, at least limiting carcinogenic substances present in cigarettes,” Hux said.

And Boyns advised that any policy an employer adopts should be clear and tailored to business needs. Avoid imposing limitations that would discriminate based on a legally protected status. Employees should be given advance notice of the policy before it takes effect. And given the evolving state of the law on e-cigarettes, workplace policies should be regularly re-evaluated for consistency with state and federal laws, she concluded.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

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