Do workplace smoking bans apply to e-cigarettes?

The move by Los Angeles City Council this week to ban electronic cigarettes from restaurants, bars, nightclubs and other public spaces in the city leaves employers grappling with the issue of whether  to develop policies to regulate their use in the workplace.

Los Angeles joins New York City, which extended its ban in December on smoking cigarettes in public places, restaurants, bars and in private office buildings to include e-cigarettes, and Chicago, which acted in January to prohibit e-cigarettes in restaurants and bars. At the state level, New Jersey, Utah and North Dakota ban the use of e-cigarettes where smoking is prohibited.

E-cigarettes are battery-powered cartridges filled with liquid nicotine that creates an inhalable vapor when heated.

Those in favor of allowing them in the workplace maintain that there is no proof they present health risks to anyone, and that e-cigarettes might even act as a smoking cessation device or eliminate the need for traditional smoking breaks during the workday. Those opposed, meanwhile, argue that e-cigarettes still contain nicotine and small levels of known carcinogens and toxic chemicals, and that banning their use altogether eliminates the risk of complaints from those who are annoyed by the vapors.

Fisher & Philips attorney Michael Abcarian spoke with EBN about the intricacies of extending smoking bans to include e-cigarettes and how employers need to look at the issue.

A lot of employers have smoke-free campuses and buildings now. How do e-cigarettes play into that?

The first problem for employers to tackle is figuring out whether e-cigarettes are covered by existing policies they may have regulating or prohibiting smoking in the workplace. Obviously, with e-cigarettes involving different chemicals and other processes, they look like conventional cigarettes, but they don’t really act the same way.

If they’re not covered by existing smoking policies – since we’re talking about heating a liquid instead of combusting tobacco – then the employer has to make a decision on whether it’s going to treat e-cigarettes in the same fashion that it does traditional cigarettes, or [if] it is going to treat them differently for some reason that makes sense in the workplace.

For example, one of the problems with regular cigarettes is the second-hand smoke problem, in addition to all of the health [effects] we’re all very familiar with. But an e-cigarette doesn’t have the same byproduct when the liquid is heated. It emits a vapor. Sometimes, or often, that vapor is odorless and doesn’t carry the same chemicals in the air, so those are issues you’d be thinking about as an employer for the benefit or consideration of other employees.

You also have to decide things like, what’s [your] objective? Are we trying to keep smoke out of the workplace? Are we trying to regulate or prohibit against people who ingest nicotine from working in the workplace, or are there other issues associated with the act of smoking that we’re trying to regulate? Until an employer defines what its goals are, you can’t even begin to formulate policies or really deal with an issue.

How are e-cigarettes being dealt with at the state level? Are you aware of any states that have legislated smoking bans that also apply to e-cigarettes?

I think we have already a small handful of states – it is small right now – that have significant limitations or prohibitions. Certainly, the expectation is that [it is] going to expand into a much larger number of states and municipalities or smaller subdivisions of states across the country.

The trend seems to be that governmental entities, employers and others who have the right or ability to regulate a physical area are moving toward treating e-cigarettes more like traditional cigarettes than as some completely different kind of product or thing to regulate.

Beyond defining what their objectives are with a smoking ban or policy, what else should employers be doing and what do they need to be aware of?

It’s important to be sure [that you] not only take a look at your policies, but you also need to look at the lay of the land on applicable law in your local area. Right now, we don’t have overarching and consistent federal regulation or legislation, so you’ve got to look and see what local laws apply or don’t apply and in some instances, you’ll have to make some calls or do some interpreting because e-cigarettes are not strictly the same thing as a tobacco leaf cigarette.

We do expect the Food and Drug Administration to be speaking very soon on what will be a national basis for this country on policy about regulation of e-cigarettes and although nobody knows for certain what the FDA is going to say, I believe it’s highly likely that they’re going to be treating [e-cigarettes] –  for purposes of regulation, warnings, marketing and advertising – very much like traditional cigarettes. At the end of the day, when the rules settle down and e-cigarettes have been out there for a longer period of time than they have now – because it’s a very new phenomenon – I think we’re going to find a general regulatory framework that treats e-cigarettes very, very similarly to traditional cigarettes.