In 2013, the sale of e-cigarette's skyrocketed, overtaking nicotine patches for the first time. Surveys estimate that there are now over 1.3m e-cigarette users in the UK and due to concerns over the lack of regulation it has been announced that from 2016 e-cigarettes will be licensed as a medicine in the UK. Despite their increasing popularity, many employers do not have a clear policy which covers the use of e-cigarettes, otherwise known as 'vaping', on their premises.

The law

Smoking in enclosed or substantially enclosed workplaces has been banned in England since 2007 (under the Health Act 2006) and even earlier in Wales, Scotland and Northern Ireland. This ban includes manufactured and hand rolled cigarettes, pipes and cigars. In contrast, e-cigarettes are battery powered devices that vaporise a nicotine solution to replicate smoking without the use of tobacco. Whilst e-cigarettes do contain nicotine, they do not contain any lit tobacco and are therefore not technically covered by the UK's anti-smoking laws. This has sparked a debate amongst employers; it does not break the law but should the smoking of e-cigarettes in the workplace be allowed?

Health issues

E-cigarette are marketed as a healthier alternative to smoking, as they do not give off smoke or tobacco. Rather unhelpfully, there is no conclusive medical opinion on the safety of e-cigarettes to assist employers in making this decision. The British Medical Association ("BMA") is pushing for stronger controls due to concerns over the impact from being exposed to vapours. There is also the fear that the use of e-cigarettes will lead people 'ashtray' and renormalise the concept of smoking in the workplace. The BMA is pushing for the government to follow the lead of Australia, Canada and Denmark who have extended anti-smoking legislation to include e-cigarettes.

The fix

As e-cigarettes are not covered by anti-smoking legislation, it is up to employers whether they permit or prohibit their use and it simply comes down to what stance employers wish to take.

There are potential problems facing employers who permit the use of e-cigarettes within the workplace. The main concern is that from a health and safety perspective the jury is very much still out. The side effects of e-cigarettes are still unknown and it is unclear as to whether breathing in second-hand vapour could cause health issues. As such, any decision to permit their use may create issues amongst other employees, such as non-smokers and pregnant staff members who are concerned about being passively exposed to the vapour. Ex-smokers and those attempting to quit have raised concerns about the effect of seeing other employees vaping, as they find it difficult to be near any form of cigarette usage. If the effects of e-cigarette vapour are subsequently found to be harmful, then employers may be exposed to potential claims from employees harmed by exposure to the vapour.

Further concerns have been raised over the misunderstandings that can be caused by their use. The vapour produced does look like smoke and can give rise to confusion about whether and where smoking is allowed on company premises and whether an employer is complying with the anti-smoking legislation. In addition to this, an employee can claim to be using an e-cigarette rather than a real cigarette making breaches of non-smoking policies harder to enforce.

An employer's wish to maintain its professional image may dictate its position. There are certain industries, such as retail and leisure, where employers may not want clients and customers to see, what they perceive to be, staff smoking.

Other factors to note are the potential fire hazards as some devices are known to catch fire or even explode while charging. Also, some devices use USB ports to charge, which if used at work could be a breach of an employer's IT usage policy.

Despite the points raised above, those in support of e-cigarettes claim health concerns are just a smokescreen to justify prohibiting their use. In contrast, they point to the health benefits and the role e-cigarettes can play in assisting employees who are trying to quit smoking by allowing them to manage their nicotine cravings, whilst also enabling them to work more effectively. The added benefit to employers is that allowing vaping will eliminate the need for smoking breaks, thus increasing the amount of time employees spend at their desks.

Practical steps

Whatever stance employers decide to take, we recommend taking the following steps:

  • If you do not have a no-smoking policy, then ensure that you introduce one and include details of your approach to e-cigarette usage;
  • If you have an existing policy, then ensure that it is amended/updated to deal with your approach to e-cigarette usage;
  • Set out clearly that any failure to comply with your no-smoking policy may result in disciplinary action; and
  • Consider updating your IT Usage and Health and Safety policies to cover the use of e-cigarettes.

If you do decide to ban e-cigarettes then consider:

  • Providing e-cigarette users, who are effectively non-smokers, with an outdoor space separate from that used by smokers;
  • Updating your no-smoking signage to include reference to e-cigarettes; and
  • Whether you will permit the temporary use of e-cigarettes, in certain circumstances, as part of an employee's programme to quit smoking.

If you decide to allow e-cigarettes usage at work, then consider:

  • Implementing certain restrictions, such as, no e-cigarettes which create large or fragrant vapour clouds that could irritate other employees;
  • Restricting usage to non-client and/or non-customer areas only; and
  • Expressly banning e-cigarette usage in company vehicles or on customer premises.

In any event, it is worth taking steps to make support information available to employees who wish to quit smoking or cut down on the amount they smoke.