February 18, 2014
Should employers allow e-cigarettes in the workplace?
By Elaine Quayle, Editor

With e-cigarettes suddenly in the news after recent bans by Chicago and New York City and the controversy over their use at the Golden Globe awards, employers may have questions about the use of e-cigarettes in their workplace and what changes to smoking policies and procedures they should have in place.

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smoking e-cigarette

So I consulted an expert on the subject, Maggie Mahoney, JD, staff attorney with the Public Health Law Center at the William Mitchell College of Law in St. Paul, Minnesota, to answer some questions pertinent to health and employment issues regarding this topic. Mahoney is deputy director of the Center's Tobacco Control Legal Consortium, a network of legal centers supporting tobacco control policy change throughout the United States.

EQ: To what do you attribute the increasing popularity of e-cigarettes—the health benefits over smoking, the lower cost than cigarettes, or the ability to smoke them where cigarettes are prohibited?

MM: I think they have become increasingly more popular for a variety of reasons. First, consumers think that they are not harmful or that they are safer than cigarettes due to advertisements that imply that they are better than conventional cigarettes.

Second, many e-cigarettes are cheaper than cigarettes and come in a variety of flavors, making them appealing to kids as well as price-sensitive adults who don’t really like the flavor of conventional cigarettes. Third, some of the devices don’t always resemble cigarettes, so people who like to buy or use gadgets might find them appealing.

Finally, the use of e-cigarettes actually is prohibited by many of the same laws and policies that prohibit the smoking of cigarettes. In places without those laws, some of the e-cigarette companies and vendors market the use of e-cigarettes, using a “You’re a rebel if you use these” message. Apparently that message strikes home with some people.

EQ: As one of his last acts, former New York City Mayor Michael Bloomberg signed a law that banned e-cigarettes everywhere other tobacco products are prohibited. Some critics said this would undermine smokers who are trying to quit by taking away a cessation tool. What do you think?

MM:The New York City law, like other laws and policies elsewhere in the U.S., prohibits the use of e-cigarettes in areas where smoking is prohibited. The rationale behind this type of a law is that it protects bystanders from any possible dangers; it makes enforcement of smoke-free laws easier, and kids who have never seen cigarettes smoked in public places will be less tempted to use tobacco products.

Are those benefits outweighed by arguments that e-cigarettes could be used to help smokers quit? E-cigarettes have not been approved by the U.S. Food and Drug Administration (the federal agency that regulates cessation devices) for cessation purposes and, in fact, currently are completely unregulated by the FDA.

This means that there are no current manufacturing standards for these products, which can contain carcinogens and dangerous levels of nicotine. If people want to quit, they should consider exploring safe and effective approved cessation options, such as counseling and nicotine replacement therapy.

EQ: Is your organization concerned about the safety or health risks of e-cigarette vapor? If second-hand exposure isn’t an issue, should employers consider treating e-cigarettes differently by allowing them in more places on employer grounds, such as break rooms or patios?

MM: Because there is so much variation in these unregulated products that can contain carcinogens and because preliminary studies have shown that their exhaled vapor can contain nicotine and other particles, employers should treat the use of e-cigarettes similarly to smoking and other tobacco products.

If at some point down the road the FDA establishes certain manufacturing standards that will guarantee that the vapor is safe for bystanders and that the products are suitable for cessation purposes, employment policies can be adjusted, if desired, to allow them to be used.

EQ: If an employer wants to prohibit the use of e-cigarettes in its facilities and on its grounds, can it just plug “e-cigarettes” into current smoking prohibition policies or do you have suggestions for policy language to address these particular products?

MM: I am a lawyer, so of course my answer is “It depends!”

An employer’s existing tobacco-free policy may already prohibit the use of any e-cigarettes or e-cigarette cartridges containing tobacco-derived nicotine. Not all e-cigarettes contain tobacco or nicotine; however, so it can be helpful to explicitly mention e-cigarettes— and describe what you mean—so that it is clear that none of these types of products can be used on the premises.

An employer with a smoke-free policy might want to specifically indicate that “smoking” includes the use of these types of devices, since they aren’t combusted like conventional products.

Because each policy is different, there’s no one right answer. Our guide, Regulating Electronic Cigarettes and Similar Devices, which we updated in December 2013, provides more information, including some sample language that can be used as a starting point.

EQ: Do you have any suggestions for implementing an e-cigarette prohibition policy?

MM: An employer should follow the steps taken when implementing other policies: make sure that it is clearly written, communicated to employees in advance, and consistently—and fairly—enforced.

With many people turning to e-cigarettes because they are addicted to nicotine and think that e-cigarettes may be safer than conventional cigarettes, it would be helpful for an employer to make sure that its employees have access to adequate cessation services, either through an insurance provider or a worksite wellness program.

Does your company address e-cigarettes in its smoking policy? Take our poll!

Maggie Mahoney

Maggie Mahoney, JD, is the deputy director of the Tobacco Control Legal Consortium, a program of the Public Health Law Center, Inc. Mahoney coordinates the Consortium's provision of legal technical assistance and provides direct assistance on tobacco control issues to public health professionals and organizations, legal professionals, and advocates throughout the United States. She also provides support to governments and organizations adopting, implementing, and defending tobacco control policies.

Mahoney is also an Adjunct Professor of Law at the William Mitchell College of Law teaching public health law and appellate advocacy skills courses and holds a graduate-level public health certificate from the University of Minnesota’s School of Public Health.


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