Where, when, and how to allow vaping

Sales of electronic cigarettes are booming and use of e-cigs is not, at present, officially regulated. Should employees be allowed to use e-cigs on the premises?

Alan Delaney is an associate in the employment & pensions team at Maclay Murray & Spens LLP and a member of the firm’s food and drink team.

By Alan Delaney

The popularity of e-cigarettes has soared following the ban on smoking in public areas.

However, with an estimated 2.1m users in the UK, according to health charity Action on Smoking and Health, e-cigarettes and their use in the workplace continue to cause controversy. Unlike tobacco products, e-cigarettes are not covered by the legislation banning smoking in the workplace but many overseas countries have opted to regulate their use. The UK is, reportedly, set to face increased controls as e-cigarettes become regulated as a medicine in 2016. In the meantime, employers should consider appropriate rules and amend any existing smoking policies to include such devices.
E-cigarettes convert nicotine, flavour and other chemicals into a vapour inhaled by the user. The exhaled vapour can be seen and some are odourless. Free of tobacco, they do not give off smoke though a number of the products are designed to look like traditional cigarettes.
Some will argue that employers should take a permissive approach to e-cigarettes in the workplace and claim they are a healthier alternative to smoking. It may also be argued that if the number of smoking breaks, where members of staff who smoke leave the premises, can be reduced employers may benefit from increased productivity.
Despite those arguments, it seems likely that many employers will look to take a cautious approach to the use of e-cigarettes at work. A British Medical Association briefing paper has urged stronger controls to protect others from being exposed to e-cigarette vapours and calls on employers to implement organisation-wide policies banning their use in the workplace. The paper raises the concern that the use of e-cigarettes may even undermine existing and conventional tobacco control measures and reinforce normalcy of smoking behaviour, due to the visual similarities with ordinary cigarettes.
Further concern might also be expressed by some employers with staff in customer-facing roles, who believe such use could damage the image of their business, if they are perceived by clients or customers to be smoking cigarettes in the course of their duties.
To address the wider concerns and reduce the likelihood of future disputes, clear rules should be put in place. Such rules should set out how and where e-cigarettes may be used, to address any potential risk posed to others, as employers have a duty of care to all staff. Employees should also be made fully aware of the company’s stance and that disciplinary action will be taken if the policies are not complied with.
Irrespective of the view taken by an employer, current policies and signage dealing with smoking at work should be updated to reflect the widespread use of e-cigarettes.
Policy updates may also provide an opportunity to extend existing employee support to e-cigarette users and consider whether additional support should be made available, in particular for individuals looking to give up smoking altogether.
In the absence of regulation, ACAS has also recommended that employers make their position on e-cigarettes clear to staff. However, the organisation has also warned that the devices may potentially cause concern among other workers, particularly if they are pregnant or themselves trying to give up smoking.
Care should be taken to ensure that existing policies are appropriate. For example, concern might be validly raised by e-cigarette users about a requirement to use a smoking shelter where tobacco is smoked. This could expose them to second-hand tobacco smoke and undermine efforts by such employees to give up smoking. To avoid this issue, employers should consider designating a separate area for e-cigarette use.
Employers cannot ignore the rise of e-cigarettes. While uncertainty remains about the long-term role of such devices, now is the time to review existing policies and make appropriate changes, where required, to take such emerging developments into account.