Seven years on since the smoking ban came into effect in July 2007, the sight and smell of smokers in public buildings and enclosed workplaces in the UK is a distant memory. However, while indoor venues are now tobacco free, many of those trying to quit smoking are increasingly turning to ‘vaping’ and using e-cigarettes as an alternative. Janine Lawton, employment solicitor at Tallents in Newark looks at the issues for employers that the growing popularity of e-cigarettes is bringing.
Janine Lawton, Employment lawyer at Tallents Solicitors in Newark, Southwell and MansfieldJanine comments:
E-cigarettes are electronic devices which use heat to vaporise a liquid nicotine solution to replicate smoking without the use of tobacco. As such, they are not covered by the Health Act 2006 which prohibits smoking in an enclosed workplace.
Lack of regulations causes confusion for employers
The current lack of regulations on the chemicals used in e-cigarettes has led the British Medical Association to express concerns about the quality and safety standards of the devices.
In addition to the concerns regarding the potential long-term implications for those using e-cigarettes, many are worried about the effects of ‘passive vaping’ from e-cigarettes.
Whilst it has been established that passive smoking from conventional cigarettes is harmful, the risks around e-cigarettes remain unclear and there is still a significant variation in the content of e-cigarette vapours. However, from 2016, e-cigarettes will become a licensed medicine in the UK. It is not yet clear whether these will be available on prescription, but either way, the products and their contents will be subject to much stricter regulation.
Communicating clearly with employees
Janine continues:
Most employers will have a smoking policy in existence but not many will have considered how to communicate to employees their wishes regarding the use of e-cigarettes in the workplace.
The effect of the smoking ban was to prohibit smoking in enclosed public spaces including the workplace. However, unlike tobacco, e-cigarettes are not covered by the Health Act 2006, which means that employers can decide whether to allow the use of e-cigarettes in their workplace or to opt to treat cigarettes and e-cigarettes in the same way.
Issues to consider regarding the use of e-cigarettes in the workplace
However, when making a formal policy decision, there are a number of issues for an employer to consider:
- – Although some employers take the view that allowing e-cigarettes may reduce the number of breaks and increase productivity, it could create confusion as it can be difficult to tell from CCTV if an employee is using an e-cigarette or smoking a real cigarette, this can present problems when contemplating disciplinary action.
- – There are also some industries where the use of a battery-operated device in the workplace environment could present other hazards and safety risks.
- – Another issue relates to the professional image of an organisation, especially where clients visit the business premises. Although some businesses permit smoking in designated areas, some forbid smoking anywhere on site, including car parks and near entrances.
- – Perhaps the most compelling argument for banning the devices in the workplace is the risk of exposing other employees to potentially harmful substances, which could lead to liability for personal injury claims in future. As such some employers have already banned the use of e-cigarettes altogether whereas others allow the use of the devices in a designated area at specific times.
- – Having said this, given that some employees use e-cigarettes as part of a programme to quit smoking, employers may wish to strike a balance between supporting those employees in their effort to quit and protecting other employees by ensuring that they are not exposed to vapour from the devices.
Janine comments:
For employers wishing to support employers who are trying to quit smoking by using e-cigarettes, one solution might be to allow the use of e-cigarettes in a designated external area, ideally away from those smoking conventional cigarettes, at specified break-times. At Tallents, we can help you consider options to suit all circumstances.
Update policies to include e-cigarettes
While some employers may already have policies in place regarding smoking in the workplace, they should consider updating their policies to deal with the use of e-cigarettes. Any such documents should state clearly the consequences of breaching the rules and as with any policy, the employer should adopt a consistent approach to avoid suggestions of preferential treatment.
Janine finishes:
Tallents is available to help any employers who wish to prepare or update existing policies to ensure that everything is communicated in a clear and fair way to employees.