Employment e-Brief: E-Cigarettes in the Workplace

The increased use of e-cigarettes often poses a difficult question for employers in considering how these should be treated in the workplace.

The Law:

The Health Act 2006 banned smoking in substantially enclosed public places and workplaces. However, whilst e-cigarettes do contain nicotine, no materials are burned and only vapour is produced. As such, they are highly unlikely to be caught by the smoking ban.

So, where does that leave employers?

All employers are under a statutory duty to ensure the health and welfare of their employees. However, despite there being numerous studies carried out, there is yet to be any conclusive evidence as to the effect smoking e-cigarettes has on public health. This is not particularly helpful for those employers looking for a straightforward answer on the issue and, as such, other factors ought to be taken into consideration.

Many people are concerned about the quality and safety of the e-cigarette devices themselves, which are currently unregulated. This is especially the case as the e-cigarettes themselves are often imported from countries that have less stringent product regulations than the UK. It should be noted, however, that from 2016 e-cigarettes will be licenced as a medicine in response to such concerns about their quality and safety.

Consideration should also be given as to whether permitting the use of e-cigarettes fits the professional image of an employer’s business, especially where employees work in customer or public-facing roles. Employers should also think about whether also permitting the smoking of e-cigarettes undermines smoking prevention and reinforces the ‘normalcy’ of cigarette use, as well as considering whether allowing the smoking of e-cigarettes may upset certain workers, such as pregnant employees or those who are in the process of quitting smoking.

Therefore whilst smoking of e-cigarettes is not banned, an employer does need to carefully consider about whether they should be banned within their own business.

Many employers and establishments have already banned the smoking of e-cigarettes in the workplace, with the BBC announcing last year that it had banned the use of e-cigarettes across all studios and offices. Also, the NHS in Scotland announced earlier this month that all but one of its health boards will be banning the smoking of e-cigarettes in their grounds.

Practical steps for employers:

Whatever your business decides to do, we recommend the following practical steps:

• Introducing or amending any existing smoking policies to clearly set out your position on smoking e-cigarettes.
• Make is clear through policies and procedures that any smoking (including e-cigarettes) in a prohibited area may result in disciplinary action being taken.
• Consider putting up signs in the workplace to say where smoking is allowed and where it is prohibited.
• Consider where employees should be permitted to smoke e-cigarettes. If your business is treating e-cigarettes in the same way as ‘conventional’ cigarettes, consideration should be given as to whether a separate smoking area should be created for smokers of e-cigarettes, to assist those who are trying to give up smoking.
• Consider offering employees support and advice for giving up smoking, either though Occupational Health or through the NHS smoke free service.

For further advice on any of the issues raised in this eBrief please contact Clare Moore or any member of the Employment team.