Thursday, August 22, 2013

Electronic Cigarettes at Work?

Electronic cigarettes or “e-cigarettes” have been in the news and are apparently growing in popularity. The New York Times recently published an online debate on the potential health benefits of e-cigarettes and their potential regulation. Other news outlets have published similar articles.  (see, e.g., here, here, and here). Many employers are wondering how to react to employees who want to use e-cigarettes  at work.

E-cigarettes are battery-powered devices that allow users to inhale nicotine vapors from a heated liquid. Proponents of e-cigarettes argue that they are a safer alternative to smoking and can help some smokers quit. Detractors believe that e-cigarettes could cause more Americans to become addicted to nicotine and that, at a minimum, more research and regulation are necessary to manage health risks.

According to the Minnesota Department of Health, the State’s smoking ban does not apply to e-cigarettes. (See MDH's Smoking Ban FAQ)  Cities like St. Paul have passed tougher regulation of e-cigarettes sales, but the City’s ordinance does not affect where the devices can be used. 
Many employers are unsure how to react. Some want to prohibit the use of e-cigarettes while others see potential benefits. The devices may detract from employee productivity and create a distraction, or they could prevent smoke breaks that cause employees to leave the workplace. 

Minnesota employers need to be cautious whenever they seek to regulate a “lawful consumable product” because of the State statute prohibiting adverse employment decisions based on their off-duty use. The provisions of that statute, however, are limited to restricting decisions due related to  “use . . . off the premises of the employer during nonworking hours.”  Use of a lawful consumable product at work can be restricted.
As with so many employment issues, employers  should set aside their personal judgments regarding the wisdom of e-cigarette use and base their policies on actual effects of their use in the workplace. When considering whether to allow or ban e-cigarettes, employers should focus on employee productivity and morale and on any other actual, work-related effects of e-cigarette use. Employers should also keep their ears open for news regarding additional government regulation or research regarding potential health effects on coworkers.

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