February 22, 2014

E-Cigarettes Banned In Some California Workplaces

Electronic cigarettes are battery-operated devices that emit vaporized doses of nicotine (or non-nicotine) that is inhaled.  The vapor produced by e-cigarettes is smokeless and does not contain the amount of harmful chemicals that regular cigarettes have.  Many fans of electronic cigarettes credit these devices with helping them to cut down on or quit smoking altogether.

Due to the explosion in popularity of electronic cigarettes, employers are increasingly encountering these devices in the workplace, and are using different approaches on how to regulate their use.  Some employers allow their employees to “vape” on the premises, rationalizing that employees are more productive when they are not taking smoke breaks outside.

Other employers, however, are concerned about health and morale issues caused by the devices, especially since little is known about e-cigarettes’ long-term negative effects.  For example, employers are concerned about the potential dangerous effect of secondhand vapor in the workplace.  Additionally, the smell of the vapor from flavored e-cigarettes can irritate others and lead to complaints.

Adding to the confusion is the patchwork regulation of e-cigarettes under state and local law.  While e-cigarettes are not currently banned in the workplace under either federal or California law, state legislation is pending.  SB 648, which was introduced in the California State Senate last year, would ban the use of e-cigarettes in places of employment, in addition to prohibiting or restricting their use in residential dwelling units, school campuses, public buildings, day care facilities, retail food facilities, and health facilities.  However, the bill is currently stalled in the Assembly.  Additionally, the U.S. Food and Drug Administration has announced its intent to issue a proposed rule extending its authority over tobacco products to e-cigarettes.  (That proposed regulation is expected to be issued imminently.)

In the meantime, many California counties, cities and even school boards have passed their own rules prohibiting the use of e-cigarettes in various places, including in the workplace.  For example:

•  Marin County has an ordinance banning smoking in all places of employment.  The definition of “smoking” in the ordinance specifically includes the use of electronic cigarettes.

•  The city of Morgan Hill’s Municipal Code defines smoking to include possessing “an operating electronic cigarette” and prohibits smoking in places of employment, including in work areas, conference rooms, employee cafeterias and dining areas, employee lounges, breakrooms and restrooms, hallways, elevators, and warehouses.

•  San Francisco International Airport bans the use of e-cigarettes, except for in designated smoking areas.

•  The Contra Costa County Board of Education recently revised its tobacco policy to prohibit the use of “electronic nicotine delivery systems, such as electronic cigarettes, electronic hookahs, and other vapor emitting devices, with or without nicotine content, that mimic the use of tobacco products” on County Office of Education property and in County Office of Education vehicles, including for personnel.

Given this quickly changing landscape, employers who currently permit employees to “vape” in the workplace should ensure that there are no applicable local laws that already prohibit the use of e-cigarettes in the workplace.  Also be aware that any changes to local, state or federal law could require you to prohibit the use of e-cigarette devices at any time in the future.

Employers who want to prohibit the use of e-cigarettes in the workplace should:

(1)  Revise their non-smoking and tobacco policies to expressly prohibit the use of electronic cigarettes, and develop an expansive definition to include future innovations in this area.

(2)  Communicate the revised policy to all employees.

(3)   Enforce the policy on a consistent basis.

We will keep you posted on any legislative developments in this area.