Vapers in the Workplace

Fans of the television show Mad Men can see most of the show’s characters virtually chain smoking in the office throughout the workday. Skip ahead 50 years and those characters might be vaping instead.

The use of electronic cigarettes, also referred to as “vaping”, has become a progressively more popular and controversial trend among smokers and nonsmokers alike. Electronic cigarettes are intended to look and to be used in the same way as traditional cigarettes.  Electronic cigarettes work by vaporizing a liquid nicotine mixture obtained naturally from tobacco plants.  The user, also called “vaper”, inhales this nicotine mixture, just as a traditional smoker inhaling from a cigarette would, however without a traditional cigarette’s fire, ash, smell, or tar.

Potential health risks of electronic cigarettes are still uncertain. The Surgeon General's office has categorized electronic cigarettes as "tobacco products."   Yet supporters claim that electronic cigarettes are “safe” tobacco products and are less hazardous than combustible products due to the carcinogens in smoke.  The FDA has not reached such a conclusion and determinative research is not yet available. Electronic cigarettes, like all tobacco products, are not subject to FDA regulation as a drug or device.  However, the FDA is currently proposing a rule that would give the FDA the authority to regulate electronic cigarettes and other tobacco products. Critics of vaping raise concerns about the unknown health risks and addictive properties of e-cigarettes, as well as the possible introduction to traditional tobacco smoking that the act of vaping provides.

“Vaping” in the workplace is considered by many to be a public health concern, since the potential health risks of the vapor on users and bystanders are still unknown.  Employers are largely free at this point to create their own policy on vaping although a small number of states and municipalities have prohibited this activity in workplaces. The state of Delaware has banned vaping in the workplace and the City of Chicago has prohibited the use of e-cigarettes in public buildings. A number of large public and private sector employers have also banned vaping in the workplace, such as  the U.S. Air Force, Health Care Service Corp., and its Blue Cross and Blue Shield health plans in Illinois, Texas, Oklahoma and New Mexico, who have incorporated a ban on electronic cigarettes as part of their policies on the tobacco-free workplace. Just this week, the Village of Wilmette voted to regulate electronic cigarettes in the same fashion that it regulates tobacco sales. In the last few months, Lisa Madigan joined a majority of other state attorney generals in urging the Food and Drug Administration to strengthen its regulations on e-cigarettes to prevent nicotine addiction. It appears that a trend is emerging.

Since the rules regarding “vaping” in the workplace vary from place to place, it is important that employers are aware of regulations of e-cigarettes in their municipality. Beyond that, employers should strongly consider banning use of e-cigarettes in their workplaces consistent with growing public policy designed to prevent nicotine addiction and to promote a safe work environment. As always, employers who choose to do this should notify their employees in writing of the new policy and obtain their written acknowledgement of their understanding. Like tobacco smoking, employers have no obligation to give employees “vaping” breaks or provide them with a “vaping” area.