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Blog: No smoking (policy) without fire

In my colleague Joanne’s recent blog she mentioned that companies, and in particular HR departments, often find themselves at the sharp end when dealing with cultural shifts. Here’s another recent development for the long suffering HR manager to wrestle with: what do we do about e-cigarettes in the workplace?

The electronic cigarette (e-cigarette or e-cig) entered the picture in 2006. They differ from regular cigarettes in that what is inhaled is a vapour composed of water, nicotine, and propylene glycol instead of smoke. Since then, tobacco control experts have struggled to understand if and how e-cigarettes will impact on efforts to reduce smoking-related morbidity and mortality.

E-cigarettes are challenging the scientific community to think about the relative harm of different tobacco products and how to advise the public. The announcement that e-cigarettes are to be licensed as a medicine in the UK from 2016 is a response to concern about the lack of regulation surrounding them. As I’m sure you know, unlike tobacco products, e-cigarettes are not covered by the Health Act 2006, which prohibits conventional smoking from the workplace. This is because the definition of smoking requires something to be lit with a flame, and that’s not the case with e-cigarettes. There are some real concerns about the safety of the chemicals used in e-cigarettes and the British Medical Association says that more research is needed to establish the effectiveness and safety of the devices as a nicotine-replacement therapy.

So the lack of legal guidance, plus the potential health concerns, leaves employers with the burning (sorry) question about what to do in their own workplaces. Those who have already decided on an e-cigarette policy for their workplace seem to be guided by the question of whether e-cigarettes are on the whole good for their employees’ health or not.

Some of our firm’s clients have allowed staff to use e-cigarettes in the office, and some of these have reported to me that other workers have let off steam (sorry) to HR that they’re upset with working near a colleague who is “vaping”, particularly if they are pregnant or trying to give up smoking themselves. So we have a third element to consider: colleagues’ emotional reactions to seeing others vaping.

And here’s a fourth element for the mix: some employers have been wrestling with the reputational/customer service implications of how it might appear if a customer or member of the public walks in to see an employee “vaping” in the workplace.

I have heard that some employers have taken the step of amending their smoking policy to treat e-cigarettes in the same as conventional cigarettes, i.e. banning them from being used indoors. The risk with this approach seems to me to be that you could be seen as forcing e-cigarette users to stand outside with other (real) smokers, which could encourage some of those “vaping” to return to “the real thing” (or take it up in the first place). It also exacerbates the age-old problems of these employees losing valuable working time by taking smoking breaks away from their work stations (who may otherwise have carried on working, happily vaping away) and of their non-smoking colleagues from huffing and puffing (sorry) that the smokers are getting “extra breaks”.

What’s clear is that, at the moment, the anti-smoking legislation definitely doesn’t cover e-cigarettes and, unless you’re ahead of the curve (in which case, well done), it’s likely that your smoking policy doesn’t cover them either. As a result, if you want to introduce rules on e-cigarettes you are likely to have to update and amend your smoking policy. From recent queries that I’ve had, most employers are erring on the side of caution, because the health benefits and risks of e-cigarettes are not yet known, and so have amended their “conventional” smoking policies to ban e-cigarettes from the workplace too.

This stance doesn’t have any legal grounding (at the moment) but, provided you inform all your employees of the policy change, you should be able to enforce it since it seems like a reasonable workplace rule if you wish it to be. The fact that vaping isn’t banned in the workplace doesn’t make it a human right.

Simon Martin
Associate Solicitor, Menzies Law

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