We look at the issue of e-cigarettes  and how employers should tackle  the rise in their use. Specifically we  ask whether they should be allowed  in the workplace and what  employers should consider when  drawing up a policy.

Background

Latest figures suggest that around  1.3 million Britons now smoke  e-cigarettes, a 100% increase from  2012. E-cigarettes, which generally  look like real cigarettes, contain a  rechargeable battery and a liquid  solution containing propylene glycol  or glycerine (which contains a  nicotine dose of varying levels).  When heated by the battery, they  produce a vapour that can be  inhaled. The fact that it is a vapour  that is inhaled rather than smoked  has led to the verb ‘vaping’ being  adopted to describe their use,  instead of ‘smoking’.

Arguments for and against

Opinion on their use, both generally  and in the workplace, is split.  Supporters argue that e-cigarettes  should be actively promoted as a  healthy alternative to smoking and  that employers should play their part  in encouraging employees to give up  smoking by using this method. On  the other side of the debate, people  are concerned that the use of  e-cigarettes glamorises smoking and  could in fact encourage nonsmokers (including minors) to take it  up. Many people are unconvinced  that they have no health  ramifications. Although e-cigarettes  do not contain any tar, they do  contain nicotine, which is addictive  (although it is possible to buy “zero  nicotine” e-cigarettes) and there is no  clear evidence as to whether they  contain any other toxic elements.

Concerns – at home and abroad

As a result of these concerns a  number of countries have banned  the importation and sale of  e-cigarettes, including Brazil,  Singapore and Mexico. In the  United States there are a variety of  different approaches: Arizona has  banned the sale of products to  minors, as has New York State,  which has also banned vaping within  100 metres of school entrances. In  Washington State, all vaping in public  is banned.

Here in the UK, there are also  concerns. At the last annual meeting  of the British Medical Association,  their members agreed that  e-cigarettes should be included in  the smoking ban currently in force.  As yet, there has been no indication  from the Government that it intends  to make this change. A January  2013 briefing published by the BMA  summarised the main concerns:

“While e-cigarettes have the potential  to reduce tobacco-related harm (by  helping smokers to cut down and  quit), a strong regulatory framework  is required for the sale and use of  e-cigarettes to:

  • ensure they are safe, quality assured and effective at helping  smokers to cut down or quit 
  • restrict their marketing, sale and promotion so that it is only  targeted at smokers as a way of  cutting down and quitting, and  does not appeal to non-smokers,  in particular children and young  people 
  • prohibit their use in workplaces and public places to limit second  hand exposure to the vapour  exhaled by the user, and to ensure  their use does not undermine  smoking prevention and cessation  by reinforcing the normalcy of  cigarette use.” 

Regulation

It was announced last summer that  the Government wants to ensure  that e-cigarettes are regulated and it  has welcomed draft EU legislation  that will mean by 2016:

  • the sale of e-cigarettes will be restricted 
  • they will also be subject to medical regulation and manufacturers will  need to be licensed and will be  required to state clearly the  precise nicotine content 
  • there will be a ban on marketing or selling them to people under 16.

Issues for employers to consider

Acas has published a very brief  guidance note, which addresses the  issues that should be considered by  employers when deciding on their  policy. According to Acas, those  issues include many of those set out  above. The Acas guidance  acknowledges that “It’s in the  interests of employers to do their bit  to promote health and well-being in  the workplace” and that “Supportive  employers may be able to provide  help and advice for employees who  want to quit smoking”. Whether that  extends to promoting the use of  e-cigarettes, Acas do not make clear.  However, they recommend that  employers consider whether the  devices are likely to upset other  workers “particularly if they are  pregnant or trying to give up  smoking themselves”.

The Acas guidance also raises the  question of whether employees  vaping in the workplace would fit  in with the employer’s desired  corporate image.

Another issue raised by many is the  smell. Whilst the smell is undoubtedly  preferable to cigarette smoke (many  e-cigarette vapours are scented), it  still has the potential to cause friction  in an enclosed work place.

Another running debate is whether,  by encouraging the use of  e-cigarettes in the workplace,  employers could reduce the amount  of time that smokers spend away  from their desks taking smoking  breaks. Similarly, where vapers are  asked to do so away from their  desks, employers need to ensure  they monitor the time they spend  vaping, as they do with smokers.

Whilst many argue that e-cigarettes  should be encouraged as a healthy  alternative to an unhealthy habit,  some employers who have looked  into the issue have reported that  smokers and ex-smokers have fed  back that watching others use  e-cigarettes has enhanced their  cravings and therefore it was  unhelpful to have them in the  workplace.

What should employers do?

Common consensus therefore  seems to suggest that vaping should  be banned in workplaces, at least  until the Government’s approach  (e.g. including e-cigarettes expressly  in the smoking ban) and the health  implications of them become clearer.  Put simply, there seems to be too  much scope for the use of  e-cigarettes to cause unnecessary  tensions. There is also a whole host  of industries and workplaces where  vaping at work would not be safe or  in line with corporate image; it is hard  to imagine a customer not feeling  uncomfortable at the sight of a bus  driver or a supermarket cashier  vaping whilst working. Where  employees work with children, an  outright ban would also seem  sensible.

Where should those who wish to  vape be sent?

Some employers have considered  asking those smoking e-cigarettes  to join their smoking colleagues in designated smoking areas. However,  that could invite problems. Vapers do  not classify themselves as smokers  and many, particularly those who use  e-cigarettes as a way of giving up  smoking, are likely to complain about  being exposed to second hand  smoke. To avoid this issue, if vapers  are going to be asked to vape in  specified areas, this should be away  from the designated smoking area.

What about social events?

Employers will also have to consider  what approach they take to social  events. A number of movie stars  were pictured at the recent Golden  Globe awards vaping inside the  venue. Smoking does not need to be  expressly banned at social events  because where those events take  place in an indoor venue, smoking  will be banned anyway and smokers  will have to go outside. So should  employers ban vaping at social  events? Our view is that doing so  would be hard to justify, particularly if the venue allows vaping. Of course  where it is not permitted by the  venue, there will be no issue.

Summary

We are in a period of uncertainty at  the moment so employers will have  to decide their own policy on this  issue and it is unlikely that there will  be a ‘one size fits all’ solution. In  some workplaces, particularly where  employees are not customer facing  and have a level of privacy whilst  working, it may be hard to justify an outright ban at work. In others, for  example where there are open plan  offices and particularly where  workers are identifiable by a uniform  or are customer-facing, it would be  wise to ban the use of e-cigarettes,  for corporate image reasons. In any  event, employers should consider  consulting with staff before  introducing new rules.

The main points employers will need  to consider are:

  • If vaping in the workplace is to be banned, where should vapers be  told to ‘light up’? 
  • If employees are made to leave their desks to vape, the time spent  away from their desks needs to  be monitored.
  • Where some employees are in customer facing roles and others  are not – or where certain roles  are split between customer facing  time and desk work – should a  consistent approach (eg an  outright ban) be taken or should there be some flexibility allowed?  Policies tend to work best when  they are simple and easy to  understand; if there is going to  be a degree of flexibility, any  restrictions placed on the use  of e-cigarettes must be set  out clearly. 
  • What approach should be taken to vaping at social events? 
  • Whatever approach is decided on, it needs to be clearly  communicated to all employees,  with the consequences of breach  made clear.