February 3, 2014Client Alert

Clearing the Air: Employers Should Consider Their Policies on Smoking in the Workplace to Keep Pace with the Rising Use of E-Cigarettes

The growing popularity of electronic cigarettes, or “e-cigarettes,” has sparked a new dilemma for employers who will have to decide how to address their use at work. The number of users of e-cigarettes, which became readily available in 2006, has ballooned dramatically in recent years, forcing employers to decide what place, if any, “vaping” has in the workplace.


E-cigarettes are tobacco-free, battery-operated devices that mimic cigarettes by turning nicotine, flavor, and other chemicals into an aerosol that is inhaled by users. E-cigarettes emit a smoke-like vapor upon exhaling, and most are manufactured to look just like conventional cigarettes or cigars. Some even resemble every day, workplace items like pens and USB memory sticks.  


No federal law regulates where they can be smoked, and no state has completely banned e-cigarettes. This is partly due to the fact that most smoke free laws were enacted before e-cigarettes were on the market. Twenty-four states and the District of Columbia have laws prohibiting tobacco cigarettes in the workplace, but only three — New Jersey, Utah, and North Dakota — have added e-cigarettes to those laws. Most U.S. cities have not addressed the issue of e-cigarettes, and except in a few locations, use of e-cigarettes is not specifically prohibited under the same laws or ordinances that ban tobacco smoking. The Food and Drug Administration does not regulate the recreational use of e-cigarettes. However, the FDA is expected to issue a proposed rule which should clarify the health effects of e-cigarettes.


This scarcity of laws or regulations on e-cigarettes leaves a hazy picture for employers who are unsure how e-cigarettes fit into their current policies on smoking. When developing e-cigarette policies, factors employers should consider include: health and safety, productivity, public confusion and health plan coverage.


At first blush, the health risks associated with tobacco cigarettes — including the dangers of secondhand exposure—might not be apparent with e-cigarettes, but the vapor emitted from an e-cigarette does contain nicotine and other chemicals which may affect co-workers and customers. Even though the jury is still out regarding the long-term effects of vaping, employers who permit the use of e-cigarettes in their workplaces need to prepare themselves for employee questions about exposure to this vapor.


The lost productivity associated with smoke breaks adds up over time, which is one reason many employers have smoking policies in the first place. Some argue that permitting employees to use e-cigarettes at work will actually help productivity by cutting down on the number of times a smoker has to head outside during the day. If smokers can ditch even a few outside smoking breaks during a day by using e-cigarettes at their desks that could mean big savings for employers over time.


Because e-cigarettes look like tobacco-cigarettes and emit vapors when users exhale, customers and other employees may assume that an employee using an e-cigarette is smoking a tobacco cigarette. Permitting employees to use e-cigarettes might also result in compliance problems with workplace tobacco policies and smoke free laws if it becomes difficult to police whether an employee is vaping or smoking.


Finally, employers should also consider how employees’ use of e-cigarettes might affect their status under health plans with premium differentials for tobacco users. E-cigarettes do not contain tobacco and a switch to e-cigarettes might arguably mean improvements in health for the estimated 45 million smokers in the U.S. Nevertheless, some employers, like UPS and Wal-Mart, already include e-cigarettes as tobacco use for purposes of determining additional premiums because the health effects of e-cigarettes are currently unknown.


When it comes to e-cigarettes in the workplace, where there’s vapor, there may be fire. The popularity of e-cigarettes is growing fast, and businesses should act now to have e-cigarette policies in place.

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