E-Cigarettes: Podcast Lights Up Lessons For Employers
Author: David B. Weisenfeld, XpertHR Legal Editor
August 5, 2014
A new XpertHR podcast examines the trending issue of electronic cigarettes and what it means for employers. While 29 states plus the District of Columbia ban smoking in the workplace, only three (New Jersey, North Dakota and Utah) currently prohibit e-cigarette use at work. The Food and Drug Administration's Center for Tobacco Products predicts e-cigarette sales will pass those of traditional cigarettes within 10 years.
Los Angeles employment attorney Stefan Black, of Ford Harrison, asserts that the science surrounding the health risks is still "in its infancy." Speaking on the podcast about the relative lack of state regulation to date, Black says "Legislators are worried about being caught on the wrong side of history."
However, the tide may already be changing. The Food and Drug Administration (FDA) has announced plans to issue new rules to extend its regulatory authority to cover e-cigarettes later this year. In addition, Black notes that a number of municipalities have passed ordinances banning their use in public places and places of employment, including New York City, Boston, Seattle, San Francisco and Chicago.
As a result, Black advises that employers should be extremely cautious about allowing e-cigarette use at their facilities. The Ford Harrison attorney highlights two key issues involving e-cigarettes in the workplace:
- Do e-cigarettes actually help people stop smoking?
- Does allowing e-cigarettes at work increase employee productivity?
The evidence on the first question remains mixed, as is the case for the full extent of the health risks. Some researchers contend that allowing e-cigarettes to compete with regular cigarettes might actually reduce tobacco-related deaths and illness.
Addressing the second question directly, Black expresses his doubts that e-cigarettes somehow increase employee productivity. For instance, he notes that employees who use e-cigarettes generally continue to take smoke breaks outside. In addition, he says, "There may be a decrease in productivity among nonsmoking employees who have a negative reaction to the e-cigarette vapor."
But that's not the only potential ramification employers have to fear, according to Black. He explains, "Employers who allowed employees to smoke tobacco in the workplace in the 80s and 90s were subject to substantial liability when the dangers of secondhand smoke were established." Black says the potential liability for an employer could be equally disastrous if it permits e-cigarette use in the office and a nonsmoking employee can later prove that any adverse health effects were tied to e-cigarettes.
Finally, the Ford Harrison attorney notes there is nothing to stop employee health plans from charging e-cigarette users higher insurance premiums than for nonsmokers, although the practice is not yet widespread.
