While smoking has been unlawful on school campuses in Pennsylvania for several years, it appears that current federal and state laws that apply these bans do not include electronic cigarettes. As a result, school entities should act to address this issue on their own campuses and update their policies as needed.
Pennsylvania’s Clean Indoor Act prohibits smoking in a public place and defines smoking as a “lighted cigar, cigarette, pipe or other smoking device”, but does not specifically include electronic cigarettes. The State Legislature has taken up legislation to add electronic cigarettes, but the legislation has been stuck in committee.
Federal law prohibits “smoking” in schools, but does not define smoking, leaving the issue of whether it includes electronic cigarettes an open question. Lastly, Pennsylvania law has a specific prohibition, in addition to the Clean Indoor Air Act, regarding the use of tobacco by anyone on school property and also prohibits the possession of tobacco by students, but defines tobacco as “a lighted or unlighted cigarette, cigar, pipe or other smoking product or material and smokeless tobacco in any form”, but does not directly address the issue of electronic or vapor cigarettes.
To date, it does not appear that any court has dealt with whether this more modern cigarette is included within the prohibitions under these three statutes, leaving school entities in the position of having to guess.
Given the uncertainty as to whether electronic cigarettes are covered by current law, school entities would be well advised to review and revise their policies and student hand books to address this issue to make clear that the use and/or possession of electronic cigarettes are prohibited on school grounds, in school vehicles by students and during school related or sponsored activities.
More specifically, school entities should make clear to students that these items are prohibited and what the discipline may be for both possessing and/or using these devices.
In addition, school entities should consider adopting policies with respect to employees, but should be aware that they may first have to negotiate with any employees subject to collective bargaining agreements, as this may be a change in working conditions to the extent that the statutes cited above would not be applicable.
The Bottom Line
While previous cases have found that traditional smoking bans in public schools do not have to be negotiated, those cases were based upon the statutes cited above, which essentially require that school entities ban tobacco smoking, or on an overarching pedagogical concern of a school implementing an anti-smoking program and the need for school staff to not smoke as part of that process. It is not clear that either of these issues are implicated in the same way with electronic cigarettes, which some have suggested should be considered a smoking cessation device. As a result, school entities need to proceed with caution.
If you have any questions, contact your legal counsel or one of the education law attorneys at KingSpry.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
