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Electronic cigarettes: why your firm needs a “vaping” policy now

Your employment policies address cigarettes, and so you think you have the smoking issue covered. Well, think again. Electronic cigarettes have created new challenges for employers.

Electronic cigarettes, also known as e-cigarettes, first became available in the United States in 2006 and have grown in popularity. Designed to look like cigarettes, they are battery-powered devices, usually made of plastic or metal, that convert liquid nicotine into a mist, or vapor that the user inhales. The liquid nicotine is often flavored and the vapor produced resembles smoke.

How popular are e-cigarettes? Popular enough to spawn the terms “vaper,” for a smoker, and “vaping,” for the act of smoking, not to mention a product line that Forbes magazine estimates currently generates $1.5 billion annually in sales. Even though sales of traditional cigarettes have declined, sales of e-cigarettes are expected to increase substantially: by approximately 25 percent annually through 2018.

Part of the attraction has been that while cigarette smoking is regulated, e-cigarettes have yet to be restricted.

The key word is “yet.”

The Food and Drug Administration (FDA) is reviewing proposed options for a regulatory approach to electronic cigarettes. However, even the FDA finds the issue unclear and has extended the original 75-day comment period by an additional 30 days.

Among the debates is that e-cigarettes help smokers of traditional cigarettes quit, although survey findings have been inconsistent. Proponents of vaping also say electronic cigarettes are not addictive, or at least not as addictive as traditional cigarettes. Initial findings also suggest secondhand exposure may not be as much of an issue with e-cigarettes, although the chemicals used to help make the vapor haven’t been analyzed.

Meanwhile, for employers, there are considerations.

Where there’s smoke

Electronic cigarettes do use nicotine, and they emit vapor that nonsmokers may, at the very least, find unpleasant.

If smoking is not allowed in the office or on practice property, it would therefore make sense to include e-cigarettes in the policy.

Indeed, several states and municipalities have already banned e-cigarettes from smoke-free zones and/or public places.

As of August 1, 2014, states include New Jersey; North Dakota; Arkansas; and Utah.

Cities include Boston; Chicago; New York; Philadelphia; Seattle; Tempe, AZ; Pocatello, ID; Mountain View, CA; San Angelo, TX; Savannah, GA; Gainesville, FL; Indianapolis, IN; and Duluth, MN, among others.

Because debate and legislative changes are ongoing, you’ll want to check local laws. Keep in mind that even if a law addresses e-cigarettes in your city or state, it may not pertain to all smoking areas (the office lunchroom, for example). Nevertheless, local legislation may help you in your efforts to set practice policy. 

At the same time, when implementing policy changes at your practice, remember: You have to get specific.

This means amending policies to include electronic cigarettes – and note the word “policies.”

With e-cigarettes growing in popularity, now is an ideal time to take a look at any and all policies that might be affected.

Tightening any loopholes

For example, does your practice refuse to hire smokers? If so, should smokers of e-cigarettes also be banned as part of this employment policy?

The move could be considered controversial, given that a number of physicians have cited the merits of e-cigarettes. Cancer surgeon and NBC News Chief Medical Editor Dr. Nancy Snyderman has gone on record as saying that electronic cigarettes are an effective alternative to smoking tobacco.

And Snyderman is not alone. A recent study of 128 physicians in North Carolina finds that two-thirds of the doctors believe the devices could be a useful tool to help people quit smoking – and in fact, 35 percent of surveyed physicians have recommended e-cigarettes to their patients.

Since opinions vary when it comes to electronic cigarettes, it is best to consult the attorneys at your practice before implementing policy changes. And it’s advisable to have the conversation and address the matter before a vaper creates controversy at your law office.

Policies to consider with regard to electronic cigarettes include employment, on-premises smoking, and any restrictions with regard to health insurance benefit offerings.

Knowing where the practice stands with regard to e-cigarettes, and amending policies to include these nicotine products, can prevent all your past efforts at managing the issue of tobacco use from going up in smoke.

Related reading:
Is firing employees for medical marijuana discrimination?
How the Affordable Care Act affects your policies and practices
How to protect your practice against costly FLSA and EEOC claims

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