Quirky Question #228, E-Cigarettes: To Vape or Not to Vape at the Workplace”

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Question:

Our California company has a no smoking policy but had not thought to include a ban on e-cigarettes, as we had not experienced any problems with them at the workplace until now.  A handful of our employees use e-cigarettes during work hours.  A week ago, a supervisor informed HR that coworkers were concerned about the health effects of being exposed to e-cigarettes.  Can we and should we ban e-cigarettes at our workplace?

Answer:

It wasn’t too long ago that working in corporate America meant you were either puffing cigarettes at your desk or you were subjected to second-hand smoke on a daily basis.  The standard for an acceptable work environment has indeed changed with time, with cigarettes banned in essentially all workplaces.  However, a new debate is arising on how to handle an alternative to traditional cigarettes in the office: e-cigarettes.

E-cigarettes basically consist of a cartridge, a battery and an LED light. When turned on, the e-cigarette heats up the liquid that is housed in the cartridge; this produces an aerosol mist or vapor, which the “smoker” inhales or “vapes.”  The ingredients of the liquid vary, but generally include nicotine (though some are nicotine free), chemicals to vaporize the nicotine (like propylene glycol and vegetable glycerin), additives and flavoring.

Your non-“vaping” employees’ complaints about breathing in second-hand “vape” are not unique to your workplace,.  Nonetheless, proponents of vaping claim that e-cigarettes don’t burn so there is no second-hand smoke.  But is there really no second hand vapor/smoke?  This is unclear.  Studies have found that vaping worsened indoor air quality, specifically by increasing the concentration of nicotine, particulate matter, PAHs and aluminum — compounds that have been linked to lung and cardiovascular disease and cancer among other health effects.

What Laws Regulate the Workplace Use of E-Cigarettes?

Currently, three states (Utah, North Dakota and New Jersey) have enacted laws restricting the use of e-cigarettes at work. California, contrary to that state’s tendency to regulate workplace conditions, has not yet banned the use of e-cigarettes on the job.  That is not for want of trying.

Last May, the California Senate passed legislation restricting e-cigarette use in the workplace, but the bill stalled in the Assembly. Absent a state-wide ban, some California counties and cities – Marin County, Contra Costa County, San Bernardino County, Santa Clara County, Mountain View, Richmond, Temecula, Tiburon, Union City, Eureka, Fairfax, Fremont and  Long Beach – have already taken up the cause and prohibited the workplace use of e-cigarettes. Most recently, the Los Angeles City Council voted to ban workplace vaping.  Los Angeles has joined a growing list of major cities nationally, including New York, Boston and Chicago, restricting the use of e-cigarettes.

Absent Regulation, to Vape or Not to Vape?

In local jurisdictions with no restriction on the use of e-cigarettes, California employers are free to institute such bans themselves. Just as employers may regulate other aspects of workplace conduct, employers may impose a policy that restricts employees from vaping on the job.  Notably, even if an employee has a nicotine addiction and he or she requests the use of e-cigarettes as a reasonable accommodation, an employer is not necessarily required to create an exception for the employee; rather, the employer should engage in the interactive process with the employee to consider alternatives, such as providing breaks for the employee to vape (and possibly creating a smoking/vaping designated area if necessary) or allowing the employee to use nicotine gum.

Employers in favor of allowing e-cigarettes at the workplace often argue that permitting the use of e-cigarettes increases productivity and decreases absenteeism, since former tobacco smokers need not leave the premises for cigarette breaks and, like non-smokers, suffer from fewer colds and other respiratory illness. Other employers do not permit the practice, citing complaints from co-workers and customers. Further complicating employers’ choices, public health experts disagree about the relative risks and benefits of e-cigarettes.

Faced with these issues, employers have taken differing approaches to workplace vaping. According to a recent Wall Street Journal article, Starbucks and Wal-Mart Stores do not allow customers or employees to use e-cigarettes. In contrast, both customers and workers are allowed to vape in McDonald’s restaurants and Exxon Mobil allows its employees to vape in smoking areas.

Employers should also be aware of an increasing trend of employees using e-cigarettes or “vape pens” to smoke marijuana at the workplace.  Marijuana users are flocking to the pens: One out of three reviews on www.Leafly.com, the Yelp of the marijuana world, is about vaping marijuana.  This growing trend is likely highly attributable to the fact that the output of e-cigarettes do not have the telltale marijuana smell.  While employers are within their right to discipline such employees for violating the company’s anti-drug policy, monitoring and detecting drug use is much more difficult when e-cigarettes are allowed at the workplace.  For those employers in favor of allowing e-cigarettes at the workplace, they should consider: 1) expanding their anti-drug policy to explicitly ban the use of e-cigarettes and vape pens to smoke marijuana; and 2) advising employees in writing that the employer reserves the right to inspect e-cigarettes and vape pens for traces of marijuana if these instruments are brought onto the employer’s property.  For more thoughts on employees’ use of marijuana, click here – Quirky Question #211.

Tips for Employers

Given the rapidly changing legal landscape and the continuing controversy over the unknown health effects of e-cigarettes, employers who wish to allow vaping at the workplace should proceed with caution.

  • First, employers should review and understand local ordinances to ensure the practice is permitted in their city or county, and watch carefully for new developments, both legal and scientific, concerning e-cigarette use.  Employers should also understand whether unions, work councils or other laws could raise barriers to implementing workplace policies that seek to regulate use of e-cigarettes.  In the end, employers with operations throughout California may find it best to adopt a uniform e-cigarette ban simply to ensure compliance with the various, and constantly changing, local laws regarding e-cigarettes.
  • Second, as with any policy, employers that ban e-cigarettes at the workplace should revise their non-smoking and tobacco policies to expressly prohibit the use of electronic cigarettes, and develop an expansive definition to include future innovations in the area.  As with all policies, employers should ensure the policy is clearly communicated to employees and enforced fairly and consistently to avoid discrimination claims.
  • Finally, employers who allow workers to use e-cigarettes should ensure vaping does not negatively impact the work environment of co-workers who may be physically sensitive to the vapor byproducts or who may express general discomfort with working in a vaping workplace, and consider permitting vaping only on breaks in a designated area.

 

Topics:  E-Cigarettes, Employer Liability Issues, Employment Policies, Starbucks, Wal-Mart, Workplace Safety

Published In: Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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