E-cigarettes have become a social phenomenon and were virtually unknown only a few years ago. Has your smoking policy been updated to take e-cigarettes into account? Our article outlines some of the issues involved.

How up to date is your company smoking policy? Does it take account of the rise of electronic cigarettes?

The phenomenon of e-cigarettes has been widely documented and as an alternative to the highly hazardous conventional cigarette, many have welcomed their arrival.

Employers face the choice of how to treat the use of e-cigarettes in the workplace. Should they be treated along the same lines as normal cigarettes or should there be a different set of rules for their use? Many may find that their policies have yet to catch up with ‘vaping’ and this can cause problems if the use of e-cigarettes leads to a case of disciplinary action.

An employment tribunal case has shown how important it is to include the use of electronic cigarettes in their smoking policy. A catering assistant had been seen smoking an e-cigarette in full view of the pupils and the headmaster had dismissed her, saying that she had violated the school’s smoking policy. The school’s smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes.

Nobody had informed her about the rule that she was alleged to have broken because there wasn’t a rule in the policy about e-cigarettes, merely conventional methods of smoking.

Although the case didn’t turn on this question, it did raise the important issue of the legality or otherwise of bans on the use of e-cigarettes if those bans didn’t accord with the smoking policy in question.

What the law says

Smoking in public places, including all office and work spaces was banned in England in July 2007. The Health Act 2006, by which the ban was effected, defines smoking as:

Smoking tobacco or anything which contains tobacco, or smoking any other substance, and includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.

E-cigarettes don’t technically come under this law and there is therefore no legal compulsion on employers to ban them in the workplace. However, some businesses have made the decision to include them in any smoking policy as they fear that the use of e-cigarettes could be seen to be undermining smoking restrictions that are already in place.

The Health Risks

However, doubts have arisen regarding the harmlessness of e-cigarettes; recent reports have highlighted the fact that e-cigarettes contain toxic substances, including small amounts of formaldehyde and acetaldehyde, which are carcinogenic, and that in some cases vapour contains traces of toxic metals such as cadmium, nickel and lead. These levels are much lower than in conventional cigarettes but the effect of regular exposure over many years is currently an unknown quantity – the jury is out on safety issues.

A World Health Organisation report said that “ENDS (Electronic Nicotine Delivery System) users should be legally requested not to use ENDS indoors, especially where smoking is banned until exhaled vapour is proven to be not harmful to bystanders and reasonable evidence exists that smoke-free policy enforcement is not undermined.”


What employers should consider

One of the main selling points of e-cigarettes is that their use can help cigarette smokers if they wish to quit their habit. A workplace ban could be seen by smokers who wish to quit as failing to support their efforts and if this means that they have to spend time outside whilst smoking conventional cigarettes, this could cause resentment amongst non-smoking colleagues. Nevertheless, with the foregoing concerns about the long-term health effects, employers should consider the health of all their employees when drafting revised smoking policies.

Whether the choice is to permit, restrict or ban e-cigarettes, an employer needs to ensure that they have a clear policy on usage. They also need to consider how their policy is going to be communicated to employees and visitors. If the policy is clear and consistent, the employer will have a better position should any dismissal take place.

All steps taken need to concentrate on information and avoiding misunderstanding. It is important to make sure that third parties, including visitors, contractors and volunteers understand that the policy applies to them as well.

If you are concerned about how best to draft a smoking policy and include e-cigarettes, please contact rradar and we will be able to give you guidance and support in this novel and delicate area.