This post was contributed by Tony D. Dick, Esq., an attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Columbus, Ohio.
In just a few short years, electronic-cigarettes (also known as “e-cigarettes” or “vapes”) have become a burgeoning industry in the United States. In case you are like me and are always last to know about the latest trends, e-cigarettes are essentially battery-powered devices that heat a liquid nicotine solution until it turns into a vapor mist that can be inhaled by users. They are available in a variety of exotic flavors, including Apple Pie, Bubble Gum, Cotton Candy, and Mint Chocolate Chip, and are used by young and old alike. Though few studies have been conducted on the long-term health risks or benefits of e-cigarettes, proponents of the product argue that they are a better alternative to traditional cigarettes because users inhale fewer harmful chemicals, there is no open flame involved, and the vapor cloud created from using the product does not have a distinctive odor and dissipates rather quickly.
Though they are not officially classified as cessation devices, e-cigarettes have quickly become the most popular smoking cessation product on the market – topping both nicotine patches and nicotine gum. It is projected that e-cigarettes will rake in close to $2 billion in sales this year alone – more than doubling sales for 2012. They have become so popular that it is estimated that within the next 10 to 15 years, the sale of e-cigarettes will actually surpass the sale of traditional cigarettes.
It should be clear then that if you have not already had an employee ask to use an e-cigarette in the workplace, that day is coming. The question for employers is whether they should allow the use of these products at work or ban them like traditional cigarettes. Because e-cigarettes do not contain tobacco, they are not covered under either Pennsylvania’s Clean Indoor Air Act, or Ohio’s Smoke-Free Workplace Act. Accordingly, employers are free to set their own rules and policies concerning the use of e-cigarettes at work based on their particular preferences and priorities.
Those who advocate for their use in the workplace claim that e-cigarettes can help increase employee productivity by eliminating the need for frequent outdoor smoke breaks during the day. They also suggest that e-cigarettes can be a helpful tool for those who wish to quit smoking altogether, thereby helping to decrease the employer’s healthcare costs. On the flip side, opponents of e-cigarettes argue that, while there are no known health risks associated with e-cigarettes, this is because the product is still in its infancy. They point out that e-cigarettes still contain nicotine and at least trace amounts of carcinogens which may be harmful to the user and those around them. Opponents also argue that banning e-cigarettes in the workplace eliminates the possibility of complaints from other employees and customers who may be annoyed or uncomfortable with the vapor that e-cigarettes emit.
As the usage of e-cigarettes continues to increase and more becomes known about their effects, state and local laws may be passed that limit or ban their use in public places and the workplace. Employers should pay special attention to any future developments. In the meantime, employers should determine their position on the use of e-cigarettes in the workplace and clearly communicate that position to their employees in their existing smoking policies.