How Are You Handling Vaping at Work?

Smoking has been banned from most workplaces for a long time, but vaping presents new issues for employers. So should the smokeless alternative be treated like cigarettes? Employers should consider state and local laws, company culture, health risks and accommodations when developing their e-cigarette policies, employment law attorneys said.

Electronic cigarettes (which are also called e-cigarettes, e-cigs, vaporizers and electronic nicotine delivery systems) are battery-operated devices that sometimes look like a traditional cigarette, a pen or a USB flash drive but can take on a variety of other forms. Users puff them to inhale an aerosol that usually contains nicotine, flavorings and other chemicals—though not all e-cigarettes contain nicotine. Use of these devices is commonly called vaping.

"The trend that I've seen is that employers are generally treating e-cigarette use the same as how they treat use of traditional cigarettes," said Jennifer Betts, an attorney with Ogletree Deakins in Pittsburgh.

"This is not without controversy, however," she said, noting there is limited data about the health risks associated with the use of e-cigarettes. 

Is Vaping Harmful?

E-cigarette use has the potential to benefit some people and harm others, according to the Centers for Disease Control and Prevention (CDC). Vaping might benefit adult smokers who use e-cigarettes as a complete replacement for traditional cigarettes, but "scientists still have a lot to learn about whether e-cigarettes are effective for quitting smoking," the CDC said on its website. The U.S. Food and Drug Administration has not approved e-cigarettes as a smoking-cessation product.

The CDC does say that vaping can be harmful to children, pregnant women and adults who have never used nicotine products.

The American Lung Association cautions that vaping may pose secondhand-emissions risks. But more research needs to be done. "While e-cigarettes may be less harmful than regular cigarettes, this does not mean that they are harmless," according to the National Cancer Institute.

Check State and Local Law

Depending on their location, employers may have the discretion to treat vaping as they want, said Jay Hux, an attorney with Fisher Phillips in Chicago. But employers should consider state and local regulations when developing a policy.

Some states—such as Alaska, California, Delaware, Hawaii, Maine, Massachusetts, New Jersey, New York, North Dakota, Rhode Island, Utah and Vermont, as well as Washington, D.C.—broadly prohibit vaping in places where smoking is banned. Other states ban vaping in specific places such as child care facilities, state government buildings, schools and enclosed workspaces.

Some local municipalities also have enacted bans on e-cigarettes in enclosed workplaces. As a result, in some jurisdictions, allowing e-cigarette use in the workplace would be unlawful, Betts noted.

If a state hasn't instituted any regulations, as with any workplace policy, employers should make sure they understand their organization's goals so they can tailor policies and practices to reach those objectives, she said. "Remember, too, if you are in a unionized environment that you may need to bargain with a union before developing a policy about e-cigarette use."

Workplace Policies on Vaping

Some employers don't have explicit policies or haven't carefully considered how they want to treat vaping, Hux said. "Other employers superficially added it on to a smoking policy."

Employers should consider the pros and cons of treating e-cigarette use as they treat the use of traditional tobacco products. On one hand, workers may be more efficient if they can vape at their workstations and not take as many breaks, he said. On the other hand, an employer may find it disconcerting for employees to puff on e-cigarettes at work, he added, noting that an e-cigarette is still a means of disposing an addictive chemical.

Some employees could have a reaction to the chemical byproduct that a co-worker's e-cigarette emits, Betts noted. Requests for accommodation due to odor and chemical sensitivities are becoming more frequent under the Americans with Disabilities Act. Permitting e-cigarette use could require employers to engage in an interactive process and potentially grant accommodations to employees who feel ill by others' vaping, she said. 

Additionally, safety issues could arise with e-cigarette use in certain workplaces, such as those containing combustible materials, due to the ignition and heating elements in e-cigarettes. 

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"Moreover, if an employer's workplace is public-facing, it may have legitimate concerns about the image employee e-cigarette use projects," Betts said.

Set Clear Guidelines

Employers should evaluate their smoking policies to ensure clarity about the scope of the products covered and what areas of the worksite are covered by any smoking ban, Betts said. Consider whether employees can bring e-cigarettes into certain areas, or if they are completely banned from the property.  

If a workplace already has a clean-air policy, but it doesn't reference e-cigarettes, employees may be confused about whether vaping is covered, Betts said. "It's probably time to revise the language."

Additionally, employees should typically be informed of any changes in workplace policies before they take effect. Betts said 60 to 90 days' notice is a good rule of thumb, but some states have specific rules employers should incorporate.