The use of e-cigarettes has risen dramatically in recent years. The e- cigarette market exceeds $2 billion annually and is increasing especially rapidly among adolescents and young adults. Given the prevalence of e-cigarettes, employers are often faced with the question of whether e-cigarettes should be allowed in the workplace. Written by Stephen R. Lueke and Stefan H. Black from FordHarrison, the US member of Ius Laboris. Additional European commentary was supplied by Ius Laboris member firms; Katherine Shaw of Lewis Silkin in the U.K., Jean-Baptiste Chavialle of Capstan Avocats in France.

1. How should employers
approach the use of e-
cigarettes in the workplace?
Employers are well-advised to modify their existing
policies governing the use of tobacco products in the
workplace to also ban e-cigarettes
BY STEPHEN R. LUEKE, STEFAN H. BLACK
AUGUST 7, 2014
The use of e-cigarettes has risen dramatically in recent years. The e-
cigarette market exceeds $2 billion annually and is increasing
especially rapidly among adolescents and young adults. Given the
prevalence of e-cigarettes, employers are often faced with the
question of whether e-cigarettes should be allowed in the workplace.
What are e-cigarettes?
E-cigarettes are a smokeless alternative to traditional cigarettes. E-
cigarettes do not contain any tobacco. Instead, e-cigarettes use a
battery to vaporize a flavored liquid (commonly known as e-liquid or e-
juice) that may or may not contain nicotine. When exhaled, the vapor
gives the appearance of smoke.
Are e-cigarettes safe?
The research regarding the health effects of inhaling e-cigarette vapor
is still in its infancy. Secondhand vapor generally is considered to be
safer than secondhand tobacco smoke because e-cigarette vapor
does not contain tar, carbon monoxide or many of the other harmful
by-products of burning tobacco.
However, some studies have found that e-cigarette vapor contains
trace amounts of nicotine, carcinogens and other harmful chemicals.
There is disagreement as to whether exposure to trace amounts of
these chemicals is harmful to one’s health, but some individuals have
claimed that exposure to e-cigarette vapor irritates their eyes, causes
respiratory problems, and induces nausea and headaches.
Existing regulations governing e-cigarettes
Multiple states and several municipalities (including Boston) have
passed specific laws prohibiting the use of e-cigarettes in the
workplace. Other state and local governments are in the process of
passing and implementing similar laws.

2. The U.S. Food & Drug Administration (FDA) is expected to issue
regulations regarding the use of e-cigarettes later this year. In 2011, a
federal appeals court ruled that the FDA may regulate e-cigarettes as
“tobacco products,” but not as “drug delivery devices.” Consequently,
the FDA cannot ban e-cigarettes entirely and may only regulate certain
aspects regarding e-cigarettes, including their sale, packaging,
registration, age restrictions, and manufacturing practices.
While some European countries have begun considering laws that
would govern the use of e-cigarettes, most have not. Both France and
England prohibit “smoking” in the workplace, but the ban does not
extend to e-cigarettes. Currently, there are no plans in England to
change this approach, although the U.K. government has indicated
that restrictions on e-cigarette companies’ ability to advertise their
goods and sell to children are forthcoming. Similarly, both the French
Minister of Social Affairs and Health and France’s Supreme Court are
taking steps to expel e-cigarettes from public places, which may
include workplaces.
What should employers do?
Given the constantly changing regulations and the uncertainty of the
science related to e-cigarettes’ health effects, employers should
exercise caution before allowing e-cigarettes in the workplace.
Although the health effects of secondhand vapor are still being studied,
some individuals have reported that the vapor irritates their eyes,
exacerbates respiratory problems, and prompts an allergic reaction.
Any of these claims could give rise to a workers’ compensation claim
or a simple negligence lawsuit. Employers who allowed employees to
smoke tobacco in the workplace were subject to substantial liability
when the dangers of secondhand smoke were established. If
employees eventually are able to prove that they suffered adverse
health effects because of e-cigarettes, the potential liability for
employers who allowed e-cigarettes in the workplace could be equally
problematic.
Furthermore, permitting e-cigarettes in the workplace may give rise to
conflict among employees. Many employees find the use of e-
cigarettes off-putting, and many others find the smell of e-cigarette
vapor offensive.
Finally, some employers have found that employees are using e-
cigarettes in order to consume illicit drugs, such as marijuana and
methamphetamine (which can be added to e-liquid).
Proponents of e-cigarettes claim that allowing e-cigarettes in the
workplace would increase employee productivity and serve as a
smoking cessation device for employees who smoke. However, there
is little, if any, persuasive data that supports the notion that allowing e-
cigarettes in the workplace increases employee productivity.
Furthermore, e-cigarette manufacturers do not market e-cigarettes as
smoking cessation tools, and the evidence that e-cigarettes effectively
help tobacco smokers kick the habit is mixed.
Given the limited upside in allowing e-cigarettes in the workplace and
the potentially substantial exposure that could arise from doing so,
employers are well-advised to modify their existing policies governing

3. the use of tobacco products in the workplace to also ban e-cigarettes,
at least until science regarding the product becomes more definitive
and legislative efforts regarding e-cigarette usage are more thoroughly
developed.
Additional European commentary was supplied by Ius
Laboris member firms; Katherine Shaw of Lewis Silkin in
the U.K., Jean-Baptiste Chavialle of Capstan in France.
This cutting originally published in InsideCounsel, the online
version can be found here, and is reproduced with kind
permission.