The growing use of electronic cigarettes, many of which do not actually involve smoke, is raising concerns about “smoking” in the workplace and employers’ need to take action if they wish to keep employees from using them in the workplace.
While some advocacy groups are fighting efforts to prohibit the use of electronic cigarettes with a claim that such items are in fact a smoking cessation device, the possible health effects of these new cigarettes for both the user and those around them are largely unknown, given the newness of this type of “smoking.”
In addition, employers need to decide if they believe it appropriate for their employees to “smoke” on the job and whether permitting the same is consistent with the image the employer wishes to display to customers and other who may enter their place of business. To date, the issue has remained largely unregulated in Pennsylvania, and existing limitations on the smoking of tobacco products do not appear to apply to this new form of cigarette. Thus, it appears that private employers are free to decide on their own whether they will or will not permit the use of electronic cigarettes in the workplace and employers should be warned that current “no smoking” policies likely do not cover the use of electronic cigarettes.
The failure of employers to act in this area, if they wish to, may leave whether employees may “smoke” on the job an open question in their own places of business. Accordingly, employers need to review and, where appropriate, revise their current employee handbooks to address this new issue.
One caveat, for private employers who have union employees, it may be necessary for the employer to bargain with the union over this issue, as it may be a change in a working condition subject to collective bargaining. As always, it is wise to seek the input of legal counsel if you have any questions.
The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice Group. Jeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.
