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24th June 2016

E-cigarettes and the Workplace

Use of E-cigarettes or 'Vaping' is becoming commonplace in Britain. Surprisingly, the use of e-cigarettes in a public space is not caught by the ban on smoking on the basis that e-cigarettes contain no 'combustible material' unlike traditional tobacco cigarettes.

The effect of this is that it isn't illegal for an employee to vape in their workplace. However, employers should look long and hard at whether they should allow their employees to do so on the basis that:

  • Other staff members may not welcome the vapour in and around the workplace, especially if there are staff members who are pregnant or asthmatic. There is little known about any negative effects that vaping may have and those employees may feel they should not be subjected to vaping in such circumstances. This may lead to increased conflict between employees which could result in grievances or altercations that would need to be dealt with under the employer’s relevant policies and procedures.
  • It may lead to a drop in productivity as staff members are in effect taking the equivalent of a smoking break in their workplace. It may be an administrative burden to try and police this and ensure this doesn’t happen.
  • It may cause resentment in those staff members who do not wish to smoke e-cigarettes and wish to continue smoking tobacco and must do so in pre-determined breaks and away from the business premises.
  • It may cause health and safety issues if e-cigarettes are used at a time when a staff member needs to be concentrating fully on the job in hand.

These could be of particular concern in the care sector given that such workplaces are supposed to comply with higher standards of hygiene and cleanliness and is subject to increased regulation for this purpose. The perception that this may give to service users, staff members or even the regulators themselves may therefore be a somewhat negative one. In addition there may be service users who are elderly or infirm and they or their families may not wish for them to be in such an environment.

It is also important to note that an employer cannot rely on their existing non-smoking policy to enforce a ban on vaping if the policy only refers to tobacco-based products. The employer therefore should consider the following:

  • Consider how your Company wishes to approach the use of e-cigarettes in the workplace generally.
  • Ensure that your non-smoking policy is updated to include vaping and clearly communicate this to staff members.
  • Consider whether it is worthwhile introducing a separate vaping area for those employees who wish to avoid traditional cigarettes e.g. should they be using vaping to try and give up.

Chris King, Napthens LLP – QCS Expert Employment Law Contributor

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