The increasing popularity of so-called “e-cigarettes” is forcing employers to set policies on their usage in the workplace and to modify their on-premise smoking policies.
Electronic cigarettes are battery powered and allow users to inhale nicotine vapor without the resulting smoke or ash. They have little smell, except for ones with flavors like coffee or chocolate.
In December 2010, a federal court ruled that the Food and Drug Administration (FDA) can regulate e-cigarettes only as a tobacco product, not as a drug. This could make the use of these products more common, forcing employers to create clear policies. (Sottera Inc. v. Food and Drug Administration, No. 10-5032, D.C., 2010)
Some states and local laws ban e-cigarettes, but most governments are watching the trend to see where it goes.
Employers are responding in different ways. Some, like the U.S. Air Force, are banning the use of e-cigarettes on their premises except in designated smoking areas. This can be done by simply refining policies against tobacco use to include e-cigarettes.
Other employers see a potential gain in allowing e-cigarettes: Reducing the daily breaks needed by smokers each day. And some people use these products as smoking-cessation devices.
Jonathan Yarbrough, an attorney with Constangy, Brooks & Smith in Asheville, N.C., told SHRM Online that employers banning the use of e-cigarettes might note in their smoking policy that smoking in any form through the use of tobacco products or “vaping” with e-cigarettes is prohibited during working time. Or employees might be told that they may smoke or vape only in designated smoking areas. He says smoking should be defined in the policy as including the use of tobacco products through pipes, cigars and cigarettes and the use of e-cigarettes regardless of whether they contain tobacco.