Addiction without consequences? 'E-cigarettes' and the workplace

Although enthusiasm for New Year's resolutions may be now be waning, those who chose to give up smoking in 2014 are increasingly likely to be shoring up their resolve – or even replacing their habit - with the use of 'e-cigarettes'.  It is reported that over a million people are using them in the UK and anecdotal evidence suggests that they are starting to make an appearance in the workplace.  Last month, the Government announced that it will introduce a ban on the sale of e-cigarettes to children and further regulation is expected. How should employers respond to this change in public habits? asks Jodie Sinclair.  

What are e-cigarettes?

An 'e-cigarette' is a means of delivering a nicotine 'hit' by way of a vapour that is free of the damaging chemicals in cigarette smoke, such as tar.  The 'cigarettes' contain liquids which are heated to create an inhaled mist, which resembles smoke. The health effects are thought to be minimal as nicotine is currently considered a relatively harmless drug, somewhat akin to caffeine.  The fact that it is a vapour that is inhaled instead of smoke, has resulted in the use of e-cigarettes becoming known as 'vaping'.

The legal framework

At present, there is no specific regulatory framework around e-cigarettes; they are only regulated as normal consumer goods - for example, the battery must meet safety standards.  But, as stated above, the Government intends to restrict their sale to children and it is expected that, by 2016, e-cigarettes will be regulated as form of 'medicine', similarly to nicotine gum and patches. 

A proposal for a blanket ban on the sale of e-cigarettes across the EU has been rejected by MEPs, but limits will be placed on the amount of nicotine they contain, and individual EU member states will be able to introduce a national ban if they see fit.

As e-cigarettes vaporise a mist and do not contain a combustible material that is 'lit' or smoked, they almost certainly do not fall within the ambit of the smoking ban which was introduced in 2007 under the Health Act 2006. The British Medical Association has, however, called for the smoking ban to encompass e-cigarettes.

Acas has produced a short guidance note called 'how should employers deal with e-cigarettes in the workplace?'. The guidance has no statutory effect but suggests, in summary, that

• employers may be reluctant to allow e-cigarettes into the workplace; and
• employers should consider the impact that 'vaping' has on the rest of the workforce, especially those who are pregnant or trying to give up smoking. 

The guidance does not, however, indicate how employers should tackle these issues.

Issues to consider

Should e-cigarettes be treated in the same way as conventional cigarettes? 

Some employers may take the view that e-cigarettes are relatively harmless and, therefore, an e-cigarette break should be treated like a 'caffeine break' and allowed in the workplace. 

It does, however, seem likely that the majority of employers will be reluctant to allow 'vaping' and may be concerned about the following points.

• Projecting the right image.  This will be a particular concern where employees are in a public or client facing role, especially in health, education and social care sectors. You may consider that it is inappropriate for an employee to be 'vaping' whilst, for example, teaching a class of children or treating a patient.
• Promoting a healthy lifestyle. Whilst it is thought that e-cigarettes may be relatively safe from a health perspective, some may be concerned that it glamorises or normalises something that looks like smoking.
• Health and safety issues. Aside from the question of potential health issues around perpetuating / encouraging nicotine addiction, employers may be concerned about the impact on safety at work.  For example, it would be unsafe for a bus driver to hold an e-cigarette while driving.
• Resistance from the rest of the workforce.  It has been reported that some workers have said that they would find it harder to give up smoking if they had to work with people using e-cigarettes. In addition, vapour from flavoured e-cigarettes may emit a smell which some may find off-putting.

Action to consider

Whether or not you decide to allow the use of e-cigarettes at work, your starting point should be a well drafted policy, which is clearly communicated and implemented in consultation with employees.

If you intend allow employees to 'vape' at work, you will need to consider the following.

• Will 'vaping breaks' be required or will employees be allowed to use e-cigarettes while they work?
• If employees are expected to 'vape' during breaks, will they have to make up time in lieu, or will employees be required to restrict 'vaping' to their normal break times?
• If you want to restrict 'vaping' to certain areas, you may wish to keep this separate from smoking areas, given the health risks associated with passive smoking and the fact that many users of e-cigarettes are trying to stop smoking. 
• The strict rules on smoking in enclosed spaces, under the Health Act 2006, would not apply to 'vaping' so, if you decide to have a dedicated 'vaping area', you would have more flexibility about where this is located. It could be inside your premises, or in an enclosed area outside.

If you are going to impose a total ban on vaping at work, you will need to

• put this into a written policy (preferably drafted in consultation) which is communicated clearly and consistently across the workforce
• consider the scope of the ban – for example, will the ban extend to all your property including outside  / near the entrance to your premises? This approach would reflect the recent NICE proposal that smoking should be banned on all NHS property  
• consider what your approach will be to work-related social events. However, for social events which take place outside the workplace, this is likely to be dictated by the policy of the relevant venue
• consider whether breach of the policy will be dealt with as a disciplinary matter and, if it is, whether vaping at work will be treated as gross misconduct, justifying summary dismissal. This would have to be reflected in your written disciplinary policy.

If you are in any doubt about any of these issues, it would be sensible to seek specialist advice. Jodie Sinclair or another member of the Bevan Brittan Employment team would be happy to help in this regard.