Employment Law Lookout

It’s Getting Foggy Out There: In The Haze of E-Cigarette Popularity and Regulation, What’s an Employer To Do?

Posted in Workplace Policies and Processes

By Sara A. Eber

Scanning the news as of late, you may have heard a lot about e-cigarettes: those battery-powered cartridges with blue LED lights that look like real cigarettes, but instead of emitting tobacco smoke, release a vapor mix of nicotine and water. They even come in tantalizing flavors, like bubble gum, piña colada, and cantaloupe. According to e-cigarette proponents—unlike traditional tobacco products—they are odorless, do not impose second-hand smoke, can help smokers reduce or quit their tobacco habit, and help workplace productivity by eliminating the need for smoking breaks. So, what’s not to like?

Potentially, many things, say public health advocates, legislators, and the FDA. Until five years ago, e-cigarettes were scarcely heard of. Now, according to Bloomberg Industries, these products are forecasted to bring in over $1.5 billion this year and could outpace traditional tobacco cigarettes by the year 2023.

Despite their growing popularity, however, much remains unknown about the health and safety of e-cigarettes. The FDA, which intends to propose new rules for regulating e-cigarettes soon, cautions that consumers simply cannot know the potential risks of using e-cigarettes. And, although scientists agree that they contain less nicotine than traditional cigarettes, it’s unclear what long-term effects e-cigarettes may have on users or third parties exposed to their vapors. Further fueling the debate, last Sunday, the New York Times reported on the dangerous health risk exposure to e-cigarette liquids may cause if ingested or absorbed through the skin. The article noted that, in Kentucky, 40 percent of e-cigarette poisoning victims were adults, including a woman who suffered cardiac problems after spilled liquid absorbed into her skin.   

On the other hand, advocates for e-cigarettes see the growing popularity as a potential cost-saver for employers, both in terms of productivity and health care costs. In 2013, researchers from the Ohio State University estimated that smoking costs private employers an extra $5,816 per year from smoking breaks and additional health care expenses. Using e-cigarettes at work could arguably mitigate these costs. 

So, when facing an employee who asks to “vape” (as using e-cigarettes is commonly termed) at work, how should employers respond?

First, check your state and local law. Many states and municipalities have begun to explicitly add e-cigarettes to existing regulations banning smoking (including New York City in December and Chicago in January, with states such as Michigan and Minnesota currently considering such amendments). Even in the absence of a specific law prohibiting the use of e-cigarettes, if you already have a policy regarding smoking in the workplace, consider amending it to specifically include e-cigarettes to avoid confusion and foster a healthy workplace.

Despite the attractive benefits to allowing e-cigarettes in the workplace, absent further guidance from the FDA or scientific research on the long-term safety of these products, the prudent course is to treat e-cigarettes like you would any other kind of tobacco product. Particularly for employees with specific health concerns (e.g., pregnancy, respiratory ailments), allowing e-cigarettes at work could create consternation (or other legal issues) based on concerns about exposure to these products.  To avoid a hazy legal situation, until more is known about e-cigarettes, it may be best that employees “vape” the same way they “smoke.”

If you have additional questions regarding appropriate accommodations for this or similar situations, please contact the author, a member of Seyfarth’s Workplace Policies and Handbooks Team, or your Seyfarth attorney