Employers should be aware of the new electronic cigarette fad, and the need to address workplace policies accordingly.
Electronic cigarettes, also known as e-cigarettes, are battery-powered devices that heat up nicotine-laced liquid, turning it into a vapor that users inhale, or "vape," and then exhale. Most look like conventional cigarettes, cigars, or pipes, but some e-cigarettes resemble everyday items such as pens and USB memory sticks. According to a recent World Health Organization report, since the invention of the e-cigarette just over a decade ago, the e-cigarette industry has grown into an estimated $3 billion global business market with 466 brands of e-cigarettes and related items available to consumers.
Research regarding the health effects of e-cigarettes, especially the safety of secondhand vapor, is still in its infancy. According to the Food and Drug Administration, because e-cigarettes have not been fully studied, the following things are not presently known: (1) the potential risks of e-cigarettes when used as intended, (2) how much nicotine or other potentially harmful chemicals are inhaled during e-cigarette use, and (3) whether there are any benefits associated with using e-cigarettes and related products. While some people believe that smoking e-cigarettes is safer than smoking traditional cigarettes, and may help smokers reduce or altogether quit their use of traditional cigarettes, others claim that secondhand vapor is generally harmful to one's health and that it irritates the eyes, exacerbates respiratory conditions and could lead to allergic reactions. In the employment context, some claim that e-cigarette use could increase employee productivity and, to the extent smokers switch from traditional cigarettes to electronic cigarettes, decrease the health and medical costs associated with employees who smoke.
Even though current research does not yet provide a definitive response to these particular claims, dozens of states and numerous municipalities have already passed laws and regulations relating to e-cigarettes. For example, more than three dozen states currently prohibit the sale of e-cigarettes to minors (including Florida), and about a dozen states have enacted some form of usage ban in public places such as schools and government buildings. Florida does not have such a statewide ban, but a small number of counties and cities in Florida have enacted limited bans of e-cigarette use in certain public places. New Jersey, North Dakota and Utah are the only states that have gone so far as to forbid the use of e-cigarettes everywhere that smoking is banned. This move to regulate e-cigarette use is in line with the World Health Organization's recommendation to ban the use of e-cigarettes indoors in public places as well as at places of work "until exhaled vapor is proven to be not harmful to bystanders."
So, in light of this hazy legal and medical landscape, what is an employer to do if an employee asks to "vape" at work? The employer should first check to see if any state or local laws address the use of e-cigarettes at their workplace. If laws exist that require a ban of e-cigarette use at places of work, the answer is clear. If there is no such law regarding e-cigarette use in the workplace, the employer should nonetheless strongly consider amending its existing smoking policy to include e-cigarettes or any other electronic, nicotine-delivery device that simulates the use of tobacco. At this point, the risk of liability to the employer due to permitting e-cigarette use in the workplace outweighs the potential, limited benefits.