Surging Popularity of E-Cigarettes Poses Issues for Employers

By Rosemarie Lally
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Although cigarette smoking among American workers has hit an all-time low of 20 percent, the use of electronic cigarettes continues to surge across the United States, posing tough questio​ns for regulators, health experts and, ultimately, employers on controlling their use in public spaces and workplaces.

Electronic cigarettes—also known as electronic nicotine delivery systems (ENDS), vaporizers or e-cigarettes—are battery-operated products that turn certain chemicals, including highly addictive nicotine, into an aerosol that is inhaled by the user.They do not contain tobacco and do not emit vapor unless the user is inhaling, nor do they require ignition with a lighter or match.

Sales of e-cigarettes in the U.S., which were approximately $1.5 billion in 2014, have swelled to $2.7 billion in 2015. Furthermore, sales are anticipated to grow 24.2 percent per year through 2018, according to Fortune magazine, making this a very big business.

The Food and Drug Administration (FDA) currently regulates only cigarettes and smokeless tobacco products but may soon exercise its authority to regulate additional products, including e-cigarettes and nicotine gels. An FDA study found toxic cancer-causing chemicals in several e-cigarettes on the market, serving as the impetus for issuance of a proposed rule that would cover these products, among others. The agency currently is considering public comments on the proposal and will soon decide on “an appropriate level of regulatory oversight.”

Thirty-seven states and the District of Columbia prohibit smoking in most workplaces, but only a handful of states have specifically addressed the issue of smoking e-cigarettes, also known as vaping, in the workplace.

William Andrews, an attorney with GrayRobinson in Jacksonville, Fla., said that he’s seen more regulations on the sale and distribution of e-cigarettes—for example, restrictions on their sale to minors—than regulations on when or where the devices can be used.

Only six states—Arkansas, Delaware, New Jersey, North Dakota, Oregon and Utah—include e-cigarettes in their indoor smoking regulations. However, a growing number of cities and localities, including Chicago, Los Angeles and New York City, are enacting bans on vaping in public places where traditional cigarettes aren’t allowed, according to Elizabeth Leitzinger, an attorney with Fenton & Keller in Monterey, Calif.

The long-term health effects of the use of e-cigarettes are still unknown, causing many health experts and scientists to express concern over the practice’s growing popularity and to lobby for the prohibition of e-cigarettes in the workplace. A California Department of Public Health report issued in January found that e-cigarettes emit at least 10 chemicals known to cause cancer, or birth defects or other reproductive harm. Several months later, the National Institute for Occupational Safety and Health released a report recommending that e-cigarettes be included in indoor smoking bans because of the limited data currently available on the safety of exposure to e-cigarette emissions.

The fact that the health risks are not yet known provides a strong incentive for employers to regulate the use of e-cigarettes in the workplace, Leitzinger said.

Andrews noted that in addition to the health issue, employers have a productivity issue to consider. Employees who take excessive breaks—whether to smoke cigarettes or vape e-cigarettes—cut into their work time, making them less productive.

Russell Chapman, an attorney in Littler’s Dallas office, pointed out that there is also a safety element to consider in restricting vaping. For instance, the ignition and heating elements in e-cigarettes may present a hazard in a workplace containing combustible or volatile materials.

A number of large employers, including CVS Caremark, Starbucks, Target, UPS and Wal-Mart, have moved to include e-cigarettes in their smoking bans, and many smaller companies are following suit. While some employers prohibit smoking and vaping throughout the workplace except in designated areas, others ban the activities completely from their facilities.

Consistency in Policy Enforcement Needed

“I don’t see any problem with employers banning e-cigarettes,” Andrews told SHRM Online. Especially in light of the unknown long-term health effects of e-cigarettes, “I can’t imagine any state passing any law that would prohibit an employer from banning e-cigarettes.”

Chapman agreed with that assessment, saying that he hadn’t seen any state laws limiting an employer’s right to restrict the smoking of either cigarettes or e-cigarettes by employees while on duty in the workplace. He added that even in the absence of hard evidence of harmful health effects of secondhand vapor, the fact that many individuals find the chemical smell of the vapor disagreeable is reason enough for employers to limit e-cigarettes in the workplace.

“The question isn’t whether e-cigarettes are good or bad, harmful or not, but whether they’re annoying to other employees, and if an employer wants to ban them it should be able to,” Chapman said.

Leitzinger said that in most cases, having a policy banning e-cigarettes in the workplace makes sense because it increases predictability in the workplace, offers guidance to managers and helps to avoid disputes among employees. “The important thing is to have a clearly written policy consistently enforced across the board,” she said.

Andrews agreed that the most important consideration is for employers to be consistent in enforcing their smoking and vaping policy. “If you ban one, you should ban the other under the same terms and conditions.” Andrews reasoned that, since most workplaces with smoking policies prohibit both smoking tobacco and smokeless tobacco (such as snuff and chewing tobacco), those prohibitions also ought to apply to e-cigarettes.

Additionally, as Chapman noted, if an employer’s policy prohibits the smoking of cigarettes in the workplace, it’s confusing to allow e-cigarettes because they look so much like traditional cigarettes.

While there might be some sympathy for individuals who are using e-cigarettes as a means to quit smoking traditional tobacco cigarettes, Andrews said, “The stronger argument is that an employer just can’t make any exceptions to its no-smoking policy.”

Developing Workplace E-Cigarette Policies

Chapman cautioned employers to pay particular attention to the wording of their existing workplace smoking policies. “If you just ban smoking or tobacco products, you haven’t covered e-cigarettes,” he said. “You need to specifically ban them if you want them covered.”

He recommended employers first have their legal counsel review their current workplace smoking policies to see how extensive they are.

The next step should be to check state and local ordinances to see if they restrict the use of e-cigarettes or, conversely, restrict employers’ ability to prohibit them in the workplace, Chapman said.

Sometimes, determining the law in a specific locale concerning e-cigarettes is the hardest part of the process, according to Leitzinger. Americans for Nonsmokers’ Rights, a national nonprofit dedicated to advocating for nonsmokers, is a helpful resource for tracking state and local developments, she noted.

Once the state and local regulations are known, an employer’s smoking policy should be redrafted if necessary to specifically address e-cigarettes, Chapman said. Care should be taken to communicate the change in policy fully to employees with a companywide notice. In addition, the policy should be added to the employee handbook and posted in the workplace, making clear that it also applies to customers, clients and any other third parties visiting the worksite. It’s also helpful to have a point person in human resources designated to field questions on the policy, he suggested.

Leitzinger stressed the importance of providing a clear, explicit definition in the policy that could even cover products that aren’t being considered at the moment. “You should be specific enough to be clear about coverage of e-cigarettes, but general enough to cover products you haven’t even thought of yet,” she said.

Caveats for Employers

As a starting point, “employers should consider their own business needs and what makes sense for their particular workplace,” according to Leitzinger. While she believes employers are within their rights to restrict both smoking and vaping in their workplaces, she cautioned employers to be aware that the type of policy they adopt can have further ramifications. For example, a policy that gives hiring advantages to nonsmokers can have a discriminatory impact on certain protected classes and employers must exercise care to avoid that outcome.

Chapman noted that employers in a union environment that operate under the terms of a collective bargaining agreement may not be able to unilaterally restrict e-cigarettes. As a term and condition of employment, such a policy may be subject to mandatory bargaining with the union.

“This seems to be a situation where technology is leapfrogging over the law and the law just has to catch up,” he said. “In the meantime, it’s up to employers and their counsel to determine their needs and make sure their policies address them.”

Rosemarie Lally, J.D., is a freelance legal writer and editor based in Washington, D.C.

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