Should employers allow the use of e-cigarettes in the workplace?

It is estimated that at present there are currently around 1.3 million people in the UK using electronic cigarettes (also known as e-cigarettes).A recent announcement that e-cigarettes are to be licensed as a medicine from 2016 is a response to concern about the lack of regulation surrounding them. So what should the policy of employers be toward them?

What does the law say?

The smoking of cigarettes in enclosed or substantially enclosed workplaces has been prohibited in England since July 2007 by virtue of the Health Act 2006. This was in order to reduce the health risks associated with tobacco.However, e-cigarettes are battery powered devices designed to replicate smoking behaviour without the use of tobacco. They vaporise a solution of nicotine, flavourings, and other chemicals which the user inhales. There is a visible exhaled vapour and some products also have a light at the tip which illuminates when the user inhales.Whilst other countries such Australia, Canada, and Denmark have moved to ban e-cigarettes, since they do not use tobacco it is very unlikely that e-cigarettes are covered by the smoking ban in England.

So should employers allow the use of e-cigarettes in the workplace?

Employers firstly need to be aware of their common law and statutory duties to protect the health and safety of their employees.At present e-cigarettes are marketed as a safer way to 'smoke' without the harmful effects of tobacco which could help people kick their smoking habit. As yet, there is no conclusive medical opinion on the safety of e-cigarettes.The British Medical Association (BMA) says that more research is needed to establish the effectiveness and safety of e-cigarettes. Some experts have questioned the safety of the chemicals used in them. The BMA have also advocated stronger controls on where e-cigarettes can be used. They have stated that this is in order to protect others from being exposed to e-cigarette vapours. As a result of these concerns the BMA believes the existing smoke free legislation in the UK should be extended to include vapour from e-cigarettes.Employees may believe that their employers should allow them to use e-cigarettes in the workplace. For many, e-cigarettes are a supportive measure to assist them in giving up smoking. Employers should also consider how the devices may affect others in the workplace.Using e-cigarettes in the workplace is not prohibited and employers do not have to ban the use of e-cigarettes. They equally do not have to agree to e-cigarettes being used in the workplace. It is important to consider which approach befits the best practices of your business.

What does this mean for an employer?

We would advise that all employers make their policy on the use of e-cigarettes in the workplace clear to all employees. We recommend taking the following the steps:

1. If your organisation does not already have one then introduce a non-smoking policy. The policy to include details of your approach to e-cigarettes.
2. Alternatively, amend your existing non-smoking policy to include your standpoint relating to e-cigarettes.
3. Make it clear in the non-smoking policy that an employee's failure to adhere to the policy may result in the employee being subjected to disciplinary action.
4. Should you decide to prohibit the smoking of e-cigarettes in the workplace, consider providing a suitable separate area for employees to use e-cigarettes.
5. In any event, it is advisable to provide employees with information on and links to the support available for those wishing to give up smoking.

Speak to an expert in employment law todayFor expert advice on updating your policies and procedures in the workplace speak to an expert employment law solicitor at Farnworth Rose today.Call us on 01282 695 400 or simply complete our quick contact form and we will be in touch with you shortly.