Can We Prohibit E-Cigarettes in the Workplace? Q&A

E-cigarettes seem to be everywhere these days, and some claim they help people stop smoking regular cigarettes. But, their safety is unproven, and many employers are uncomfortable allowing them in the

workplace. Should you ban them?


Q: We don’t currently have a policy on e-cigarettes but recently have had several employees ask about their use at work. We do prohibit smoking in our workplace and would like to prohibit e-cigarettes as well since we are concerned about their potential safety to others and feel it would be consistent with our smoking ban. Can we ban the use of e-cigarettes at work?


A: Electronic cigarettes, commonly referred to as e-cigarettes, seem to be all the rage and often are promoted as being safer than regular cigarettes. They are typically battery-operated devices shaped like

cigars and cigarettes that heat a liquid nicotine solution to create vapors that are inhaled by the user with very little exhaled vapor. Many people use e-cigarettes as part of their smoking cessation regime, though others use them simply as a recreational product.


However, there is little research data on the safety of these products, and because their manufacture is unregulated, the e-cigarettes can vary widely regarding how much nicotine they deliver and what other

ingredients they include. The federal Food and Drug Administration (FDA) does not yet regulate e-cigarettes, but a 2009 study by the agency found that some e-cigarettes contained carcinogens (known cancer-causing agents) and toxic chemicals such as diethylene glycol, an ingredient used in antifreeze. Because of the FDA’s concern about the e-cigarettes, it issued a proposed rule in April 2014 to subject e-

cigarettes to the current restrictions on regular cigarettes, including reporting product ingredients, restricting sales to minors, and providing health warnings on products.


Interestingly, while over half of the states have laws banning smoking in the workplace, most states do not address the use of e-cigarettes, though some are starting to include them in their state smoking bans. For example, New Jersey, North Dakota, and Utah prohibit the use of e-cigarettes in all places where smoking is prohibited. Several cities also ban the use of e-cigarettes in public places and workplaces, such as Chicago and New York City.


As a result of the concerns about the potential harm e-cigarettes may do, most employers treat them like cigarettes under their policies and procedures. So, if you ban cigarette smoking in your workplace,

updating your policy to include a ban against e-cigarettes would be consistent with your current policy. As a practical matter, though, if you have a policy that bans smoking in general without a specific reference to cigarettes or cigars, your policy already covers smoking e-cigarettes as well. But, you can be more explicit and define smoking to include the use of e-cigarettes. For example, our model Smoking policy, Comment (1) in Chapter 607, defines smoking to include the use of any tobacco-containing products, including cigarettes, cigars, and pipes, as well as the use of e-cigarettes.


Note, however, that you should not ban the use of e-cigarettes outside of your workplace during an employee’s nonworking hours. Many states specifically prohibit employers from taking adverse action based on smoking off-duty, and a few protect the use of legal products off-duty. In addition, any rule banning legal off-duty conduct is difficult to enforce and often is resented by employees as an intrusion into their personal lives.

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