HR Hero Line

Banning electronic cigarettes in the workplace

by Reggie Gay

Electronic cigarette companies like to say that users of their products can “Smoke anywhere!” According to the recent Businessweek article “E-Cigarettes Want Your Attention Now (Before the FDA Steps In),” electronic cigarettes are “expected to top $1 billion in annual sales in the next few years.” As the industry grows exponentially, employers may wonder if employees have a legal right to use electronic cigarettes in the workplace. 

What grounds do we have to limit or ban their use?
Generally speaking, private employers are free to set reasonable restrictions on employees’ activities in the workplace. Of course, you’re prohibited from adopting rules or setting prohibitions that would discriminate on the basis of a legally protected status. It’s now quite common for private employers to limit or prohibit smoking, as well as other types of activities, on their premises.

Electronic cigarettes have recently become the rage as a safer alternative to traditional smoking. In general, employees have no legal right to use electronic cigarettes in the workplace. To answer your question about banning e-cigarettes in your workplace, let’s take a look back and discuss smoking policies and how to deal with undesirable workplace activities.

Not in our workplace!
Smoking in the workplace was once socially acceptable. But as safety and health issues came to light, employers began to limit smoking in the workplace. Prohibiting smoking also helped reduce the risk of fire, work- related injuries, and the company’s exposure to potential liability. As a result, many employers placed limits on or implemented bans on smoking in the workplace.

In making a decision to limit or ban an activity at work, you should weigh the advantages and disadvantages of such a decision. There are many factors to consider, including the size and makeup of your workforce, the layout of the building, and the type of work being done by your employees. Banning certain activities could cause significant morale problems among your employees, which could affect productivity. Thus, the best practice is to base any workplace ban on a legitimate business reason.

Ultimately, however, you should be able to set reasonable limitations on your employees’ activities at work. Examples of such limitations include a ban on cell phones, banning access to Facebook, prohibiting eating and drinking in certain areas, and placing limits on activities that pose safety concerns or interfere with employees’ ability to do their jobs. This could also include the use of electronic cigarettes.

You may want to consider treating electronic cigarettes the same way you treat traditional cigarettes. If you provide a designated area for smoking, you may wish to adopt a policy that limits the smoking of electronic cigarettes to the same area. You may also want to permit the use of e-cigarettes only during scheduled smoke breaks or, if you ban smoking altogether, ban the use of electronic cigarettes as well.

What the law says
Some states have laws prohibiting employers from regulating smoking by employees outside the workplace. Thus, while you are free to prohibit employees from smoking at work, you cannot dictate whether they smoke or use tobacco products outside the workplace.

The argument is that smokers can affect the insurance rates and overall profitability of a business. Therefore, an employer has a legitimate interest in not hiring or retaining smokers. On the other hand, taking action against an employee who smokes while he’s off-duty would be an invasion of privacy or constitute an overreach by an employer that’s trying to dictate or control what its employees do in their personal lives. There may also be issues of discrimination toward certain protected classes.

Bottom line
In summary, a private employer has great latitude in setting the guidelines for its workplace. The key to limiting or banning any particular activity in the workplace is developing a clear and effective policy. You also should give employees reasonable notice before the policy becomes effective. While you may not want to be too strict or overbearing about employees’ activities at work, you’re certainly free to set guidelines and parameters for your workplace. That includes limiting or banning electronic cigarettes at work.

Reggie Gay is a shareholder with McNair Law Firm, PA, in Columbia, South Carolina, and a member of the Employers Counsel Network. His primary areas of practice include labor and employment law, workers’ compensation, litigation, health care, and appellate advocacy. Reggie represents business and governmental clients by providing consultation on employment and other matters, conducting preventive training, and litigating in both federal and state courts. You can contact him at rgay@mcnair.net.