Should employers have a policy on the use of e-cigarettes?

Posted on: June 5th, 2015

Whilst smoking in enclosed or substantially enclosed workplaces in England has been prohibited since July 2007 the use of e-cigarettes at work is not covered by the ban.

Employers can choose whether to allow employees to “vape” at work or not.  Some employees use e-cigarettes as part of a plan to stop smoking, so you may want to support their use if this is the case. However, with little evidence of the health effects of vaping, both direct and indirect (e.g. through passive vaping), concerns have arisen about the risks posed by vaping in confined workspaces.

Aside from the health concerns, you may feel that vaping in the workplace creates an inappropriate or uncomfortable work environment in view of its close association with – and similarity to – the act of smoking. Some e-cigarettes look very similar to real cigarettes so employees or customers may think that real cigarettes are being smoked in the workplace.

Why have a policy on e-cigarettes?

The following problems can arise if your position on e-cigarettes is not clear:

  • grievances from employees who object to their colleagues’ use of e-cigarettes;
  • grievances from employees prevented from or disciplined for using e-cigarettes;
  • difficulties in disciplining or dismissing an employee fairly for using e-cigarettes, as “vaping” is not the same as “smoking” and no smoking policies cannot be relied on; and
  • the risk of personal injury claims from employees who have inhaled vapours in workplaces which permit the use of e-cigarettes.

What should employers do?

If you wish to have control over the use of e-cigarettes then you’ll need to put a policy in place. We recommend that you consider how far-reaching you want your policy will be. In particular, will it simply mirror existing no smoking policies or will it be more relaxed? New terminology for what constitutes “vaping” or “smoking” or “using” an e-cigarette will need careful thought and definition, and potential problem areas should be anticipated and dealt with – for example, will plugging an e-cigarette into a USB port on a work computer constitute a breach of an IT policy? Will it constitute prohibited use of an e-cigarette? Is it ok to vape on the front step or do users have to go to the designated smoking area (which may cause problems for employees who are trying to give up smoking by using e-cigarettes)?

Your position may of course be influenced by the industry in which you operate, and your corporate philosophy and profile. It is easy to understand why a school could be concerned about staff vaping on school premises, in front of pupils. In contrast, vaping in an office which is inhabited only by the user (or jointly with a fellow user) could well be considered acceptable. You will need to consider whether allowing e-cigarettes in the workplace is consistent with the professional image you wish to project and whether it has a positive or a negative effect on teamwork and employee relations generally.

Of course vaping in the workplace does not have to be portrayed or perceived in a negative light. You may want to support your employees in achieving their goal to stop smoking and may allow employees to vape at work on this basis.

You should make clear to employees what penalties or disciplinary actions may be taken if they breach no vaping policies. For example, where an employee is caught “vaping” an e-cigarette in a prohibited area at work, or an employee takes an unauthorised or excessive number of “vaping breaks”.

Conclusion

With a growing number of people taking up e-cigarettes, our view is that employers are going to come across increasing issues with their use in the workplace. Rather than wait until an employee starts using one at their desk, or asking you why they have to share an area with smokers, we recommend putting in place a policy to pre-empt any uncertainty.