2014 marks the 20th anniversary of California’s landmark Smoke-Free Workplace Act. The Act, the first law of its kind in the nation, amended the California Labor Code to prohibit employers from knowingly permitting “the smoking of tobacco products” in most California workplaces. Interestingly, 2014 has also brought an explosion in the popularity of electronic cigarettes, also known as e-cigarettes. The increasingly widespread use of such devices – sales of which reportedly reached $2 billion in 2013 – poses novel issues for California employers.

Does “Vaping” (E-Cigarette Use) Constitute Tobacco Smoking in the Workplace?

E-cigarette use, or “vaping,” is not prohibited by California’s statewide ban on smoking tobacco in the workplace. E-cigarettes are battery-operated devices that turn nicotine, other chemicals and flavor into a vapor that users inhale. Because the vapor is smokeless, it does not contain many of the toxins in traditional cigarettes or expose bystanders to dangerous secondhand smoke. Because E-cigarettes contain no tobacco, they are not covered by California’s tobacco ban.

What Laws Regulate the Workplace Use of E-Cigarettes?

Three states – New Jersey, North Dakota and Utah – have enacted laws restricting the use of e-cigarettes at work. Although California is usually at the forefront when it comes to adopting workplace regulations, it has not yet banned the use of e-cigarettes on the job. Last May, the California Senate passed legislation restricting e-cigarette use in the workplace, but the bill has been stalled in the Assembly. Absent a state-wide ban, some California counties and cities – including Marin County, Santa Clara County and, according to the American Nonsmokers’ Rights Foundation, a dozen cities in Northern California – have taken up the cause and prohibited the workplace use of e-cigarettes. Most recently, a panel of the Los Angeles City Council voted to ban workplace vaping, and the full City Council is expected to vote on the issue shortly.

Absent Regulation, to Vape or Not to Vape?

In jurisdictions with no governmental restriction on the use of e-cigarettes, California employers are free to institute such bans themselves. Just as employers may regulate other aspects of workplace conduct, such as imposing a dress code or designating where employees may eat their meals, employers may require that employees refrain from vaping on the job. While a smoker could conceivably claim to suffer from nicotine addiction, and assert that using e-cigarettes is a reasonable accommodation for his or her disability, such a claim would be far-fetched. At least one court has held that nicotine addiction is not a disability under the Americans With Disabilities Act – and, even if it were, an employer would be free to accommodate that disability by other means, such as providing “vaping breaks” or allowing the employee to use nicotine gum. Therefore, absent legal restraints, adopting a workplace ban on e-cigarettes is a matter of practicality and policy.

According to some employers, permitting the use of e-cigarettes increases productivity and decreases absenteeism, as former tobacco smokers need not leave the premises for cigarette breaks and, like non-smokers, suffer from fewer colds and other respiratory illness. Other employers do not permit the practice, citing complaints from co-workers and customers. Further complicating employers’ choices, public health experts disagree about the relative risks and benefits of e-cigarettes. Some argue that e-cigarettes are safe and provide smokers a valuable tool for kicking the habit. Other experts note that the long-term effects of inhaling e-cigarette vapor, which contains other substances such a propylene glycol, have not yet been determined. The federal Food and Drug Administration has not yet weighed in on the issue, but is expected to issue rules soon.

Faced with these issues, employers have taken differing approaches to workplace vaping. According to a recent Wall Street Journal article, Exxon Mobil allows vaping in smoking areas, while CVS Caremark prohibits employees from using e-cigarettes at its corporate campuses. The same article reports that Starbucks and Wal-Mart Stores do not allow customers or employees to use e-cigarettes, but both customers and workers are welcome to vape in McDonald’s restaurants. And UPS has announced that its employee health plan will charge users of e-cigarettes a monthly $150 fee, just as it charges tobacco smokers.

Tips for Employers

Given the rapidly changing legal landscape, and the continuing controversy over the unknown health effects of e-cigarettes, employers who wish to allow vaping in the workplace should proceed with caution. Employers should first check local ordinances to ensure the practice is permitted in their city or county, and watch carefully for new developments, both legal and scientific, concerning e-cigarette use. In particular, larger employers with operations throughout California may wish to adopt an e-cigarette ban simply to ensure compliance with local law at all of its locations. Employers concerned about the possible health risks of e-cigarettes might also consider prohibiting their use until the FDA issues its rules and makes possible the kind of government-sanctioned clinical trials needed to provide more information about product safety.

At the same time, employers who allow workers to use e-cigarettes should ensure such use does not annoy or distract co-workers, and consider permitting vaping only on breaks in a designated area.

Finally, as with any policy, employers who institute a workplace ban on e-cigarettes should ensure that the policy is clearly communicated to employees and administered fairly and consistently.

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