Like many other things in our modern lives, smoking has gone electronic. The need for lighters, matches, or ash trays are decreasing as the number of people, especially young adults, choose to utilize electronic cigarettes and vapes. Electronic smoking devices are a relatively new phenomena, and they come in different forms; electronic cigarettes, pod vapes, and vape pens are just a few from the large variety. Vapes and e-cigarettes inhabit a highly unregulated area of the law, and as people continue to use these newer products, it is important for employers to establish guidelines that will regulate employee usage of vapes and e-cigarettes in the workplace.
E-cigarettes are battery-powered devices that are designed to mimic cigarettes by vaporizing liquid nicotine that is inhaled by the user. These popular alternatives to traditional cigarettes still contain nicotine, but many people still elect to use them because they don’t produce the classic odor of regular cigarettes.
There are a number of California state laws addressing smoking in public work spaces. Two important ones are California Labor Code sections 6404 and 6404.5, which were enacted in 1973 and 1994, respectively. The purpose of these laws was to protect public health in the workplace, which is a “matter of statewide interest and concern.” The California Labor Code states that the intention of the legislation relating to smoking is to “prohibit the smoking of tobacco products in all (100 percent of) enclosed places of employment in this state, as covered by this section…” Even though these laws were enacted before the public started using electronic smoking devices, most states and municipalities agree that vapes and e-cigarettes should also be prohibited in these spaces because they create a hazard to non-smokers in the surrounding area. Enclosed spaces include covered parking lots, lobbies, lounges, waiting areas, elevators, stairwells, and restrooms that a structural part of buildings.
The definition of smoking that is used in California Labor Code section 6404.5 is the same definition provided in California Business and Professions Code section 22950.5(c), as amended in 2016: smoking “includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking devise for the purpose of circumventing the prohibition of smoking.”
Additionally, California Code of Regulations section 5148 prohibits smoking in the workplace. Like Labor Code section 6404.5 the definition of smoking in this code has the same meaning as in Business and Professions Code section 22950(c).
The California Department of Public Health (DPH) made a statement in 2015 that laws protecting children and the public from traditional tobacco products should be expanded to include e-cigarettes. Despite not having any tobacco, the DPH cited to a report stating that second-hand vapor that comes from e-cigarettes is a chemical aerosol that contains at least ten chemicals on California’s Proposition 65 list of substances known to cause cancer, birth defects or other reproductive harm. While researchers are still studying the short-term and long-term effects of vaping and second-hand vapor, these chemicals can put all employees at risk if used in the workplace.
There are currently approximately 127 counties and cities in the state of California that have some type of 100% smoke-free venue where the use of e-cigarettes is prohibited. For example, the Siskiyou County courthouse has procured guidelines regarding “Smoking or Vaping During Court Proceedings in Siskiyou County Courthouse.” Despite having broad state laws that prohibit electronic smoking devices, it can be expected that similar guidelines will be developed in courthouses and other buildings in counties across the state over the next few years.
Other States’ Laws
The U.S. Surgeon General’s 2016 Report states that electronic smoking devices should be included in smoke-free indoor air policies, which would eliminate health risks that arise from exposure to secondhand aerosol vapor.
The American Nonsmokers’ Rights Foundation states that as of April 1, 2019, there are 841 municipalities, 13 states, and two territories that have included electronic smoking devices as products that are “prohibited from use” in smoke-free environments. For those municipalities and states that have not yet explicitly banned e-cigarettes or vapes from being used in certain spaces, it is assumed that their use is not permitted if traditional forms of smoking are banned.
There are a handful of states that are close to adopting laws that will explicitly address e-cigarettes and vapes. Effective as of October 1, 2018, Alaska included “e-cigarette” on its prohibited smoking list.
Other Countries’ Laws
The City of Richmond in Vancouver, Canada approved their own ban on smoking and vaping. Public Health Protection Bylaw No. 6989 bans smoking at public parks, public school grounds. Additionally, it is banned anywhere within nine meters of bus stops, customer service areas, doors, windows, and other air intakes. They also modified the definition of smoking to include “cannabis and all vapor products such as e-cigarettes.”
While there are many laws at the state and federal level that regulate the smoking of traditional cigarettes, it is unknown whether those same laws apply to vapes and e-cigarettes. Most legislation describes that it is intended to “prohibit the smoking of tobacco products.” Since e-cigarettes contain nicotine and no tobacco, those laws could arguably not apply.
However, since most legislation that was enacted to prohibit the act of smoking in workplace was intended to protect the health of people in those spaces, it is likely that those prohibitions will include electronic smoking devices since they produce second-hand vapor that contains chemicals.
Even though there are federal, state and municipal codes that limit or prohibit the use of electronic smoking devices, employers should still have internal policies developed that prohibit the use of e-cigarettes and vapes in their workplace.
It is important to note that vapes can be used with marijuana products, not just nicotine. The smoke from “e-joints” don’t produce the typical scent of marijuana, but they still have the same effect on the body as traditional marijuana usage. Employers should make sure to provide employees with a policy that outlines the prohibition of these “e-joints” from the workplace as well.