Vaping in the Workplace

Vaping is the use of an e-cigarette – a battery-operated, pen-shaped device that turn flavored nicotine into a vapor that users inhale. Because the vapor does not contain tobacco and is smokeless, it is not prohibited by California’s statewide ban on smoking tobacco in the workplace.
Only three states – New Jersey, North Dakota and Utah – have enacted laws restricting the use of e-cigarettes at work. California has not yet banned the use of e-cigarettes on the job. Last May, the California Senate passed legislation restricting e-cigarette use in the workplace, but the bill has been stalled in the Assembly.
Granted, e-cigarettes do not contain many of the toxins in traditional cigarettes or expose bystanders to dangerous secondhand smoke. However, it does still provide a puff of hot air and provides the same connotations as smoking in the workplace. While some employers might be delighted that their employees are no longer taking extended breaks to go smoke outside, still others do not want their brand associated with the behavior.
In addition, public health experts have yet to achieve a consensus on use of the e-cigarettes. Some argue that e-cigarettes are a valuable tool for helping smokers kick the habit. Others note that the long-term effects of inhaling vapor have not yet been determined. The federal Food and Drug Administration has not yet weighed in on the issue, but is expected to issue rules soon.
So, employers who wish to allow vaping in the workplace should proceed with caution. Employers should first check local ordinances to ensure the practice is permitted in their city or county. Some California counties including Marin and Santa Clara County – and a dozen cities in Northern California have the workplace use of e-cigarettes. Then, they should watch carefully for new developments, both legal and scientific, concerning e-cigarette use. Next, they should communicate with employees – both potential users and non-users – to see how vaping in the workplace would affect them. Finally, they should craft clear and specific rules regarding the use of e-cigarettes in the workplace. This could include designated times and locations.
As for employers who do not want vaping, do not go immediately Dirty Harry on would be vap-ees. Rather, one needs to circle back to check where they believe their disciplinary authority stems from. Smoking in the workplace is prohibited under law. It is also more than likely prohibited by way of the employer’s employee handbook or internal policies. Vaping is not smoking. Hence, it is not against the law. Furthermore, unless you had a prophetic author, it is undoubtedly not banned – or even mentioned – in your handbook or internal policies. And an employee disciplined for vaping could argue it is nothing more than chewing gum at their cubicle, which could lead to you becoming famous as the first defendant in a workplace vaping case.
So, just as those allowing workplace vaping need to draft clear and specific rules, employers seeking to prohibit the practice need to do the same. This could be through drafting new policies or revising existing ones, and making sure your employees have been properly notified of the policy. If during the period of uncertainty your employees were treating the workplace as the wild west, you may need to take some time to transition the employees away from the practice. Thereafter, the employer needs to ensure that they enforce the policy consistently and fairly for all offenders.