What to Do About E-Cigarettes and the Workplace

The relatively recent introduction of electronic cigarettes (e-cigarettes) and personal vaporizers is adding new complications to the issue of smoking in the workplace.

These products vaporize liquid containing nicotine so the vapor can be inhaled by users. The increased popularity of the products is raising new questions about the exact nature of e-smoking and whether the devices should be allowed in the workplace.

Proponents say that because e-cigarettes emit vapor that does not contain the carcinogens and other chemicals contained in cigarette smoke, e-cigarettes are suitable for indoor use. Opponents argue that because the effect of the vapor on others is not fully understood, the devices should not be used in the workplace.

What should employers do to protect employees and prepare for possible regulatory compliance needs?

Exposure Concerns

Employers looking for guidance will find little official word. It’s clear that employers have a legal duty to provide a safe workplace for all employees. But it’s not yet clear if the vapor emitted by e-cigarettes or other vaporizing devices has a negative effect on people who breathe it in second-hand.

Some scientific studies detected heavy metals and compounds such as formaldehyde in the vapor emitted by e-cigarette devices, according to an article in the Los Angeles Times.

But in that same article, conflicting evidence showed that “while these compounds are present, they have been detected at problematic levels only in a few studies that apparently were based on unrealistic levels of heating.”

The American Lung Association has noted its concern regarding the potential health consequences of e-cigarettes, including any potential harm to people exposed to second-hand emissions from e-cigarettes. The association noted that, in the absence of government oversight, there is “much to be concerned about.” The association has called on the federal government to finalize regulations that would include all tobacco products, including e-cigarettes, under FDA oversight.

The Food and Drug Administration (FDA) is in the middle of a battle over how to best regulate e-cigarettes, with public health advocates increasingly frustrated that there has been no progress on the regulation and pressuring the federal government to move the regulations forward. A year has passed since the agency proposed a rule to extend its authority over tobacco products to e-cigarettes.

In September 2013, attorneys general from 40 states, including California, sent a letter to the FDA urging the agency to regulate e-cigarettes.

Lay of the Land

Currently, e-cigarettes do not fall under California’s state-wide ban on smoking in the workplace, but efforts are underway to address that gap in coverage.

Legislation (SB 140) prohibiting the use of e-cigarettes in California workplaces was introduced by Sen. Mark Leno (D- San Francisco). The bill is pending.

In the meantime, some localities are taking their own steps. For instance, Marin County and Santa Clara County prohibit the workplace use of e-cigarettes. The Richmond and Carlsbad city councils moved to keep the devices out of parks, restaurants and other places where cigarettes are banned.

Other cities and states outside of California also took action. Chicago prohibits e-cigarettes’ use in enclosed public places and places of employment. New York City extended its public smoking ban to include electronic cigarettes. The state of New Jersey won’t allow the use of e-cigarettes in the workplace or indoor public spaces.

A word of caution: Employers will need to familiarize themselves with any local bans in places where they have worksites.

Workplace Dilemma

Employers, meanwhile, are left in limbo, faced with making decisions in the absence of regulation.

The California Department of Industrial Relations has issued no guidance on the matter, but existing anti-smoking rules may provide guidance to what employers may face should public vaping be barred.

Today businesses with more than five employees must ban workplace smoking. Those with five or fewer can permit smoking if everyone agrees to allow smoking; a designated smoking area is in place; and there are no minors on site.

For violations, fines from local labor agencies run from $100 for a first offense to $500 for a third strike.

Cal/OSHA can cite employers up to $7,000 for serious breaches after the third violation and up to $70,000 for “willful serious” violations, for example where the exposure to secondhand smoke causes a serious asthma attack.

Again, these are the current anti-smoking penalties and don’t apply to e-cigarettes. They serve only as a guideline of what might be coming, depending on how the FDA and state agencies choose to interpret the situation.

What’s an employer to do in the meantime? Tread with caution.

Policy Change

As the regulatory environment evolves, be ready to adjust your policies. A policy that is lawful today may quickly become outdated and unlawful, depending on regulatory decisions.

Although no guidance exists on this issue, many employers choose to treat e-cigarettes like regular cigarettes in the workplace. Right now there is nothing that says employers have to allow for it. Employers still are in the driver’s seat. They still can set policies regarding their workplace. Employers may want to consider bans until more is known about product safety. But they need to stay current on the events that are going on around these products.

Before setting policy, employers ought to educate themselves on the fundamentals of e-cigarettes. How does vaping work? Who is doing it, and why? Beyond the basics, policy decisions shouldn’t be an attempt to settle the looming medical questions.

In the interim, employers need some guidelines in their efforts to formulate workplace policy.

It may serve employers well to ask more fundamental questions: What’s the goal of the policy? Is it to prohibit tobacco use? Is it to make the workplace safe for all employees?

Employers need to weigh the costs and benefits of a ban on vaping in the workplace.

One benefit is that a ban would effectively make the issue moot: If the devices aren’t allowed, there can be no debate as to the appropriateness of their being used in the workplace. There would be no ambiguity as to what “smoking” means and what is or is not permitted.

On the downside, a ban on vaping in a workplace with a lot of people who use the devices could diminish morale. Also, allowing vaping in the workplace keeps people at their desks who might otherwise be outside in the courtyard taking a cigarette break.

Different employers have reached different decisions on this issue. For instance, Starbucks doesn’t allow e-cigarettes for workers or customers, although Exxon allows vaping in designated smoking areas, according to a report in the Wall Street Journal.

Employers who choose to allow vaping in the workplace should be ready to explain their decision in detail. Co-workers may not know the nature of e-cigarettes and some will be skeptical. Printed materials and open discussion can help to ensure acceptance.

Best Practices:

  • Review any local ordinances that may apply to your workplace
  • In the absence of any regulation, employers can decide what policy works best
  • Employers concerned about possible health effects or distractions can institute bans
  • Employers that allow vaping may want to limit it to designated areas

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