One of the most popular posts (i.e., most read) I've written is one I published two years ago on whether employer can or should ban the use of e-cigarettes in the workplace. Some employers have gone so far as to implement the complete ban on the use of all products containing nicotine --both during and after work. I thought that now would be a good time to update my thoughts on the subject.
Recently, the U.S. Department of Transportation issued a press release announcing its proposal to explicitly ban electronic cigarettes on U.S. flights. According to the DOT's release:
Electronic cigarettes cause potential concern because there is a lack of scientific data and knowledge of the ingredients in electronic cigarettes. The Department views its current regulatory ban on smoking of tobacco products to be sufficiently broad to include the use of electronic cigarettes. The Department is taking this action to eliminate any confusion over whether the Department’s ban includes electronic cigarettes. The proposal would apply to all scheduled flights of U.S. and foreign carriers involving transportation to and from the U.S.
Amtrak has banned the use of electronic smoking devices on trains and in any area where smoking is prohibited. The Air Force Surgeon General issued a memorandum highlighting the safety concerns regarding electronic cigarettes and placed them in the same category as tobacco products. The U.S Navy has banned electronic cigarettes below decks in submarines. Further, several states have taken steps to ban either the sale or use of electronic cigarettes.
This is a fairly contentious issue. On the one hand, smokers and supporters of e-cigarettes claim that they are odorless devices that emit nothing more than water vapor and are no more harmful to coworkers than allowing a nearby employee to chew nicotine gum or wear a nicotine patch. On the other hand, some employers have expressed concern over the lack of scientific evidence over what is emitted into the air from the electronic cigarettes; over the perception that the employer is condoning or sponsoring any kind of addiction or dependence; and whether some of the types of employment (i.e., retail or customer service) are inconsistent with image the company wants to foster.
In the end, and assuming that nicotine dependence is a disability that must be reasonably accommodated under the ADA, an employer can reasonably accommodate the disability without allowing the use of e-cigarettes in the workplace or at work stations. It is the long-standing rule that the employer gets to select the accommodation provided among various effective accommodations. For example, the employer could allow the use of e-cigarettes in the same manner as it allows employees to use other tobacco products (e.g., outdoors during break times). Similarly, the employer could allow the the employee to use nicotine gum during working time. If the employer allowed the use of e-cigarettes during working time or in working locations (and assuming it is not prohibited by state law), the employer could require that the employee refrain from using scented e-cigarette flavors to further reduce the potential effect on nearby co-workers.
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DOT Notice of Proposed Rulemaking here.