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.
C’mon..enough already! E-cigs are really no different than nicotine patches. The vapor that one exhales into the air is nothing but water. Many – including myself – turned to “vaping” when tobacco was banned at the workplace. It is infuriating that my employer now bans e-cigs as well. Because the argument of “second-hand smoke” was no longer relevant, the reason became, “well, it looks like smoking!” Stupid. Anyone who says smokers’ health costs are higher than any other group is a liar. OBESITY, my friends, results in far more diseases, far more illness, and far higher medical costs. Because smokers are more visible, and it’s politically incorrect to harass the obese, we smokers became the target of disdain, hatred, etc. LEAVE US ALONE!! Watch yourselves, those of you who freely cast stones: Get ready to give up that diet coke – caffeine is next! Or will it be artificial sweeteners? In any case, shame on those of you who participate in this witch-hunt. You included, Mr. Gay.
Good thing to know you’re not irritated about it.
No doubt, employers can ban e-cigarettes. The only question is, why bother?
You are so correct you can ban anything you chose as and employer, but think about it, why not encourage the use of the only product to actually dent the sales of cigarettes and may actually be promoting a healthier worker. Let’s not even talk about the possible increase in productivity because they are not on break. Why not ask your workers what they think and create an atmosphere that is somewhat friendly instead of stark and barren.
In the last ten years, there has an instinctive response to limit, control, mandate, and assume authority over people. You are left wondering what country you are in, because ‘freedom’ is just some old patriotic word. The author quickly connects vapor with smoking, which is just wrong. The advice: to immediately ban vapor the same as cigarettes? It’s unAmerican. The DEFAULT is that we, as free Americans, are allowed to do as we please UNTIL there’s a really powerful and compelling reason as to why we should be controlled. Vapor is not smoke, the National Institute of Health has concluded that there is no such thing as dangerous second-hand vapor. Oh, and by the way Mr. Gay, thanks for keeping the American spirit alive.
I personally prefer that the e-cigs not be permitted at my workplace, because I can smell them. Just because the vapor is water doesn’t mean there is no scent. Just like with perfumes, scents of these can be bothersome to others. The scents often make me feel nauseous.
Not to mention on more than one occasion, someone has blown their “vapor” into my face because it “isn’t smoke”. That doesn’t make it not rude.
Although the vapor from ecig is “water”, the smells from it are quite irritating to those of us with allergies and sensitivity to it. I personally cannot wear cologne, burn candles, etc as it reeks havoc on my sinuses. So yes, they should be banned as well. You get a bunch of people with several different “flavors”, it is nauseating.
Why are smokers so rude and think that their habit is their right to intrude upon others with? Smokers typically are a specific class of people that share the same selfish mindset that- if I want to do it should be accepted by everyone else, not with my lungs idiots! Go smoke yourself to death in your own stinky house losers.