How should employers approach the use of e-cigarettes in the workplace?

Employers are well-advised to modify their existing policies governing the use of tobacco products in the workplace to also ban e-cigarettes

The use of e-cigarettes has risen dramatically in recent years. The e-cigarette market exceeds $2 billion annually and is increasing especially rapidly among adolescents and young adults. Given the prevalence of e-cigarettes, employers are often faced with the question of whether e-cigarettes should be allowed in the workplace.

What are e-cigarettes?

E-cigarettes are a smokeless alternative to traditional cigarettes. E-cigarettes do not contain any tobacco. Instead, e-cigarettes use a battery to vaporize a flavored liquid (commonly known as e-liquid or e-juice) that may or may not contain nicotine. When exhaled, the vapor gives the appearance of smoke.

Are e-cigarettes safe?

The research regarding the health effects of inhaling e-cigarette vapor is still in its infancy. Secondhand vapor generally is considered to be safer than secondhand tobacco smoke because e-cigarette vapor does not contain tar, carbon monoxide or many of the other harmful by-products of burning tobacco.

However, some studies have found that e-cigarette vapor contains trace amounts of nicotine, carcinogens and other harmful chemicals. There is disagreement as to whether exposure to trace amounts of these chemicals is harmful to one’s health, but some individuals have claimed that exposure to e-cigarette vapor irritates their eyes, causes respiratory problems, and induces nausea and headaches.

Existing regulations governing e-cigarettes

Multiple states and several municipalities (including Boston) have passed specific laws prohibiting the use of e-cigarettes in the workplace. Other state and local governments are in the process of passing and implementing similar laws.

The U.S. Food & Drug Administration (FDA) is expected to issue regulations regarding the use of e-cigarettes later this year. In 2011, a federal appeals court ruled that the FDA may regulate e-cigarettes as “tobacco products,” but not as “drug delivery devices.” Consequently, the FDA cannot ban e-cigarettes entirely and may only regulate certain aspects regarding e-cigarettes, including their sale, packaging, registration, age restrictions, and manufacturing practices.

While some European countries have begun considering laws that would govern the use of e‑cigarettes, most have not. Both France and England prohibit “smoking” in the workplace, but the ban does not extend to e-cigarettes. Currently, there are no plans in England to change this approach, although the U.K. government has indicated that restrictions on e-cigarette companies’ ability to advertise their goods and sell to children are forthcoming. Similarly, both the French Minister of Social Affairs and Health and France’s Supreme Court are taking steps to expel e-cigarettes from public places, which may include workplaces.

__________________________________________________________

RELATED STORIES:

LinkedIn repays nearly $6 million in unpaid overtime

Ten most expensive wage and hour settlements of 2013

NLRB designates McDonald’s as ‘joint-employer’ in labor lawsuits

__________________________________________________________

What should employers do?

Given the constantly changing regulations and the uncertainty of the science related to e-cigarettes’ health effects, employers should exercise caution before allowing e-cigarettes in the workplace.

Although the health effects of secondhand vapor are still being studied, some individuals have reported that the vapor irritates their eyes, exacerbates respiratory problems, and prompts an allergic reaction. Any of these claims could give rise to a workers’ compensation claim or a simple negligence lawsuit. Employers who allowed employees to smoke tobacco in the workplace were subject to substantial liability when the dangers of secondhand smoke were established. If employees eventually are able to prove that they suffered adverse health effects because of e-cigarettes, the potential liability for employers who allowed e-cigarettes in the workplace could be equally problematic.

Furthermore, permitting e-cigarettes in the workplace may give rise to conflict among employees. Many employees find the use of e-cigarettes off-putting, and many others find the smell of e-cigarette vapor offensive.

Finally, some employers have found that employees are using e-cigarettes in order to consume illicit drugs, such as marijuana and methamphetamine (which can be added to e-liquid).

Proponents of e-cigarettes claim that allowing e-cigarettes in the workplace would increase employee productivity and serve as a smoking cessation device for employees who smoke. However, there is little, if any, persuasive data that supports the notion that allowing e-cigarettes in the workplace increases employee productivity. Furthermore, e-cigarette manufacturers do not market e-cigarettes as smoking cessation tools, and the evidence that e-cigarettes effectively help tobacco smokers kick the habit is mixed.

Given the limited upside in allowing e-cigarettes in the workplace and the potentially substantial exposure that could arise from doing so, employers are well-advised to modify their existing policies governing the use of tobacco products in the workplace to also ban e-cigarettes, at least until science regarding the product becomes more definitive and legislative efforts regarding e-cigarette usage are more thoroughly developed.

 

Additional European commentary was supplied by Ius Laboris member firms; Katherine Shaw of Lewis Silkin in the U.K., Jean-Baptiste Chavialle of Capstan in France.

author image

Stephen R. Lueke

Steve represents employers in all facets of labor and employment, particularly labor negotiations, arbitrations, union organizing corporate campaigns, wage and hour matters, and before the...

Bio and more articles

author image

Stefan H. Black

Stefan represents management in labor and employment law disputes and ee has defended clients in a variety of matters including claims for unpaid overtime, Title...

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.