With the new trend of ‘e-cigarettes’ the question becomes whether the use of such devices can be prohibited from the workplace.
An e-cigarette is a battery powered device that provides inhaled doses of vaporized liquid, which usually contains nicotine and is an alternative to tobacco products. The vapor produced by e-cigarettes is smokeless and does not contain the amount of harmful chemicals that regular cigarettes have.
Currently, federal law does not consider an e-cigarette to be a drug or medical device and is not currently subject to regulation by the FDA. However, the FDA has announced its intent to issue a proposed rule extending its authority over tobacco products to e-cigarettes.
Pros & Cons of Permitting Vaping at Work
Some employers allow their employees to “vape” on the premises, thinking that employees are more productive when they are not taking smoke breaks outside. Other employers, and their employees, are concerned about potential health issues caused by the devices, since little is known about e-cigarettes’ long-term negative effects. Additionally, the smell of the vapor from flavored e-cigarettes can irritate others and lead to complaints.
Indoor Use: Current California law (Labor Code Section 6404.5) prohibits smoking of tobacco products in the workplace for businesses with 5 or more employees. This provision does not cover the e-cigarettes and there is no other comparable restriction currently in the Labor Code. So employers are free to create a policy prohibiting their use indoors.
Outdoor Areas: An employer may either permit or prohibit the use of the e-cigarettes in the areas outside of the workplace if the employer controls such areas – e.g. patios, parking lots, etc. If it is a public property, an employer would need to check with their local government to determine if there is a local ordinance that restricts the use of e-cigarettes in outside areas.
Pending Action – State/Federal Legislation: The State of California has yet to address the issue of e-cigarettes at work, but SB 648, was introduced in the state Legislature in 2013 to address and prohibit the use of e-cigarettes in the workplace. That bill has passed the Senate and is awaiting action in the Assembly.