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Developing Restrictions on the Use of E-Cigarettes in the Workplace

By Robert Kirby

The increasing popularity of electronic cigarettes, commonly referred to as “e-cigs”, and similar devices is an important consideration for employers who wish to maintain a comprehensive no-smoking policy in the workplace. Many states have ratified Clean Air Acts which prohibit smoking in places of employment. Examples of such Acts include the Nebraska Clean Indoor Air Act (Neb. Rev. Stat. 71-5716 to 71-5734) and the Iowa Smokefree Air Act (Iowa Code 142D). Other states have not enacted a Clean Air Act, but allow cities and counties to adopt their own laws prohibiting smoking in the workplace.  While Clean Air Acts place restrictions on smoking in certain public areas, places of employment, and outdoor areas, the majority of these Acts define smoking in such a way that does not expressly restrict the use of e-cigs and similar devices in the workplace.

Options for Restricting the Use of E-Cigs in the Workplace

Because of the lack of statutory authority prohibiting the use of e-cigs and similar devices in the workplace, it is the responsibility of individual businesses to decide whether or not to restrict the use of these products within their business premises. It may be in a business’s best interest to develop a policy prohibiting the use of e-cigs in the workplace to avoid confusing the public with regard to whether or not the business is complying with a Clean Air Act. The confusion arises due to the fact that many e-cigs look similar to traditional cigarettes. This is especially applicable to restaurants and bars.

Several options are available for businesses interested in restricting the use of e-cigs and similar devices within the workplace. If a business currently has a no-smoking policy contained in its employee handbook or elsewhere, it should consider expanding the policy’s language to include a restriction on the use of e-cigs and similar devices in the workplace. This can be done by either re-writing the handbook policy or by clarifying the handbook policy by posting notices in the workplace to expressly restrict the use of both traditional and electronic cigarettes. If a business does not currently have an employee handbook and/or no-smoking policy, it should consider creating an employee handbook that restricts the use of both traditional and electronic cigarettes. The process of creating or revising an employee handbook also provides an opportunity to address many other company policies.

Drafting Language to Restrict the Use of E-Cigs in the Workplace

Regardless of which strategy is implemented, it is important to use carefully drafted language which is tailored to meet the needs of your company and protect against costly legal challenges. The language should reflect the desired extent of the limitation placed on the use of e-cigs in your workplace and should guard against the use of similar devices, both currently known devices and those that will be developed in the future. If your business has considered creating or revising a no-smoking policy to address the increasing popularity of e-cigs and similar devices, now is an opportune time to address these issues. An employment/labor law attorney at Croker Huck can assist you in creating or revising your company’s no-smoking policy.

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