Thursday, September 10, 2015

E-Cigarettes: The Employer’s Problem?


September 2015
By Walter J. Liszka, Esq.

Electronic cigarettes are battery-powered devices that heat up a nicotine laced liquid turning it into a vapor that the users of the e-cigarettes inhale or “vape.” Most of the e-cigarettes look like conventional cigarettes, cigars, or pipes, but some of these items may also resemble everyday items such pens or USB memory sticks. The e-cigarette business has grown into three billion dollar global business with well over four hundred brands or types of e-cigarettes available to the consumer. Obviously a very lucrative and growing business!

According to the Food and Drug Administration, because e-cigarettes have not been fully studied, there are many things that are not known:
  1. The potential risks of e-cigarettes when used as intended by the user as well as others exposed to the “vape”.
  2. How much nicotine or other potentially harmful chemicals are inhaled during the use of e-cigarettes by both the user and the people surrounding the user. 
  3. Whether there are actually benefits to the user of the e-cigarette when using the product.
Many people believe that use of e-cigarettes is safer than smoking traditional tobacco products and while that may be true, the true impact or effect of the use of e-cigarettes is not a known commodity. Others believe that the use of e-cigarettes will help a smoker reduce or actually quit the use of traditional products. This may or may not be true, but there is no definitive proof at this point. There are also some negative claims with regard to e-cigarettes that state they may be harmful the health of the user and surrounding personnel and may also create irritation and are the source of potential allergic reactions. There are also some who claim that the use of e-cigarettes is a positive in that it can increase employee productivity, decrease health and medical costs for employers and employees who do smoke because they are transferred to e-cigarettes which cause less health problems and curtail individual smoking. Unfortunately, at this time, there are no clear and definitive conclusions as to any of the above.

For an employer, the issues of the use of e-cigarettes are multi-faceted and again create potential legal liabilities. There are currently forty (40) states that ban the sale of e-cigarettes to minors (why only 40? – allegedly actual tobacco products cannot be sold to minors) and fourteen (14) that ban the usage in public places such as schools and government buildings. There are only three (3) states (New Jersey, North Dakota, and Utah) that have gone so far as to ban the use of e-cigarettes everywhere smoking is banned. Obviously, this an area that is murky at best and one in which any employer could find itself at risk.

When confronted by an employee who is requesting to use an e-cigarette at work, the employer should first inquire as to the current status of state or local laws that address e-cigarettes in their workplace. Obviously, if there is legislation that bans the use of e-cigarettes at places of work the answer is clear. If no such law exists, it may be advisable (strongly suggested by the author) that employers should consider its existing smoking policy and include e-cigarettes as part of that policy. At this point in time, the potential risk to an employer of permitting the use of e-cigarettes in the workplace outweighs any benefit that might be gained by allowing their use in the workplace.

Questions? Contact Walter Liszka at waliszka@wesselssherman.com or call him at (312) 629-9300.