Schwartz Hannum PC


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E-Cigarettes Reignite Questions About “Smoking” At Work

[January 30, 2014] In light of the increasing popularity of electronic cigarettes (“e-cigarettes”), employers must consider whether to allow employees to use e-cigarettes at work.

E-cigarettes contain liquid nicotine and are battery-powered.  When a user inhales on an e-cigarette, the nicotine is converted into a vapor that the user then breathes out, i.e., “vapes.”  While e-cigarettes are marketed as a healthier tobacco alternative, the potential harms are still unknown.  The Food and Drug Administration (FDA) has not yet regulated e-cigarettes, but is expected to issue rules on marketing, online sales, and minimum age for use soon.

Most states and cities have not addressed the use of e-cigarettes.  Only three states – New Jersey, Utah, and North Dakota – have banned the use of e-cigarettes in the workplace.  More than 100 cities, including New York City and Chicago, have banned the use of e-cigarettes indoors.  Massachusetts has a pending House bill, which has been referred to committee, that would classify e-cigarettes as nicotine products and ban their use in the workplace.

In the absence of statutory and other legal requirements, employers are free to decide whether to allow employees to use e-cigarettes at work.  Employers who permit use point to the positive effect on productivity (because employees can “vape” without taking breaks), the fact that using e-cigarettes may help employees quit smoking traditional cigarettes, and the absence of definitive research showing negative health effects of secondhand exposure to vapor.

On the other hand, some employers are prohibiting vaping at work, likely because some public health officials and health advocacy groups contend that secondhand vapor can cause negative health effects.  In this regard, the FDA’s much anticipated rules may provide important information about whether e-cigarettes are considered to be harmful or not.

While keeping an eye out for new laws regulating e-cigarette use at work, employers should determine whether to prohibit e-cigarettes in their workplace and revise existing smoking policies appropriately. Whether or not an employer decides to ban e-cigarettes from the workplace, any applicable policy should be clear, consistently applied, and communicated effectively to employees.