When employees now talk about “lighting up,” they may not be referring to smoking a traditional cigarette.  The latest development is the electronic cigarette or e-cigarette.  These devices generally consist of a tube into which a cartridge is inserted that contains a chemical solution.  The solution may or may not contain nicotine.  When the battery-operated heating element in the device is “lit” and the user draws a breath through the device, the solution vaporizes and forms a mist simulating the sense of smoking.  In common parlance, the practice of using an e-cigarette is known as “e-smoking” or “vaping.”

As a result of the increasing popularity and use of e-cigarettes, employers are determining whether or not their workplace policies and practices should permit smoking of e-cigarettes at work.  A first point of reference in this determination is whether such use is permitted under state or local law.  Some states, such as New Jersey, have amended their smoke-free laws to expressly prohibit the use of e-cigarettes in the workplace.  Minnesota’s Clean Indoor Air Act has not been similarly amended.  In 2010, the Minnesota legislature did, however, authorize municipalities to license and regulate the retail sale of e-cigarette devices.  Minn. Stat. § 461.12, subd. 1.  The Star Tribune reports that the St. Paul city council is currently debating this issue.  Minnesota law also bans the sale of e-cigarettes to minors.  Minn. Stat. § 609.6855.

Even if applicable law does not ban the use of e-cigarettes in the workplace, some employers are deciding not to allow their use in the workplace.  Reasons for such a policy or practice include, for example, the difficulty of monitoring the use of tobacco cigarettes given the similar appearance of e-cigarettes, resulting confusion among tobacco smokers as to why smoking is restricted while e-cigarettes are allowed, and the unknown health effects of the vapor emitted by e-cigarettes.

Takeaway:  Employers should determine whether applicable law in their area restricts the workplace use of e-cigarettes.  If no such law exists, but an employer nonetheless determines that such use should be restricted, companies should amend their employee policies to clearly communicate that decision.