Permitting the use of electronic cigarettes in the workplace…or not?

Smoking at work has been effectively prohibited since the Health Act outlawed smoking in enclosed places on 1 July 2007. We have become accustomed to the sight of groups of workers huddled in doorways, chuffing through their breaks. Now some of them are demanding to be let back in, saying that their electronic cigarettes (vapourisers) don’t count as real cigarettes, and that the ban doesn’t apply to them. Other workers might not be keen to share an office with somebody puffing on a blue lit stick, and complain about the smell. So who is right? Could you – should you – change your smoking policy to accommodate or exclude the e-smokers? With the current call for electronic cigarettes to be banned from restaurants, will the workplace and other indoor venues follow suit?

What are electronic cigarettes?

“E-cigarettes, personal vaporizers (PVs), and electronic nicotine delivery systems (ENDS) are battery operated devices that mimic tobacco smoking and are often used as a replacement for cigarettes. They produce a vapour, including flavoured aromas either with or without nicotine, rather than traditional smoke.” (ACAS)

The charity Action on Smoking and Health (Ash) estimate that the number of adults using these devices has reached around 2.6 million over the last couple of years (May 2015). Of this number, ASH estimate that approximately 1.1 million are ex-smokers.  Electronic cigarettes work by heating a cartridge containing liquid nicotine, producing a vapour which can then be inhaled. They are said not to release tar or other harmful carcinogens, nor to lead to “passive smoking” by others.

Aren’t they covered by the existing smoking ban?

Since they are not lit, or burnt, e-cigarettes do not fall under the definition of smoking as set out in the Health Act. E-smoking is referred to as “vaping” as it is a water based vapour which is inhaled, not smoke. Employers need to consider whether to allow employees to smoke E-cigarettes, and similar products, in the workplace or ban them as they would ordinary smoking implements.

What are the benefits of e-cigarettes?

The majority of people using e-cigarettes are doing so in order to give up smoking. This is the most positive step someone can take to protect their health. Others might argue that nicotine acts as a stimulant, making them more productive, or creative, at work. And of course employees no longer needs to step outside for ten minutes several times a day you would expect to see an improvement in productivity.

What are the risks?

The BMA recognises that there are health benefits to using e-cigarettes to give up smoking but are far from happy about the prospect of them slipping out of the control of the smoking ban. They want the government to legislate to extend the ban to cover e-smoking. As well as supporting regulation to control the production and sale of e-cigarettes, the BMA are concerned that permitting e-cigarettes where real cigarettes would be banned normalises smoking behaviour – taking society backwards, after the progress that has been made since the smoking ban.

What does the law currently say?

The law is likely to change to incorporate provisions to deal with e-cigarettes. In October 2013 the European Parliament passed a draft law to tackle smoking amongst young people, and this includes measures to regulate e-cigarettes.

The current legal status of e-cigarettes in the UK is that they are legal and not covered by smoking bans but this is likely to change with the recent news that Wales is pushing ahead to ban the use of e-cigarettes in enclosed spaces eg restaurants and pubs.

Can we use our existing policies?

The temptation for employers is just to include e-cigarettes in the workplace smoking policy, and allow vapers the same breaks and areas as the smokers (if you allow smoking at all). The problem with this is that employees might object to having to step outside with the smokers. They might argue that they are exposed to passive smoking, which is harmful to their health, and that this treatment undermines their attempt to give up smoking.

Remember, employers are not obliged to facilitate smoking, or vaping, and that any abuse of any concessions that are made, will be a disciplinary matter.

Equally, tackling e-cigarettes via a drug and alcohol policy may not be appropriate either – these policies typically deal with problems associated with intoxication at work, and e-cigarettes are unlikely to have this effect.

What should go into a new policy?

Employers should consider what their position should be on e-smoking, and how it will fit in with current policies. Employers can be as tough or as flexible as they choose, but should be consistent. Clarity about what the rules are and what the consequences will be in the event of a breach. If there is a designated smoking area, there should be a  separate area for the e-smokers. If there are particular health and safety concerns about smoking, alcohol and drugs in the business, consider whether these apply to e-cigarettes. It is also important to ensure that visitors and contractors on site comply with your policy. Above all employees should be assured that Employers are supportive of their efforts to give up smoking. There are tips and kits available at http://www.nhs.uk/smokefree

For further advice and information, please call us on 024 7699 8055