A recent Wall Street Journal article described the controversy that e-cigarettes are creating. As Lauren Etter writes,
[E]lectronic cigarettes, [are] the smokeless nicotine products embraced by a growing number of people trying to kick the habit or avoid bans on smoking in public. Electronic cigarettes typically consist of a metal tube containing an atomizer, a battery and a cartridge filled with liquid nicotine. When a user sucks on an e-cigarette, a light-emitting diode causes the tip to glow and the atomizer turns the liquid nicotine into a vapor — thus it is called vaping instead of smoking. The vapor can be inhaled and then exhaled, creating a cloud that resembles cigarette smoke but dissipates more quickly and doesn’t have the lingering odor.
Etters’ article started me thinking about whether employers can or should prohibit electronic cigarettes in the workplace. I’m not a proponent of anything as addictive as nicotine. However, could employers realize some increase in productivity by permitting smokers to use electronic cigarettes at work? Presumably, smokers use their regular breaks as their smoke breaks. Some employees complain, however, that employers tolerate more frequent and longer breaks for smokers than for non-smokers. Could employers benefit by allowing employees to satisfy their nicotine fix at their desk or break room rather than taking 20 minutes every hour or two? Indeed, how is the use of an electronic cigarette meaningfully different from the use of nicotine gum or the morning caffeine fix that employees consume at work? Are there health benefit savings that employers might enjoy by allowing or even encouraging employees to use e-cigarettes instead of smoking regular cigarettes?
Do existing employer policies prohibiting smoking in the workplace (as well as building codes and local ordinances) prohibit the use of vaping at work? While courts have historically rejected the argument that nicotine addiction is a disability, the Americans with Disabilities Amendments Act and its more expansive definition of disability could call the courts to revisit and closely scrutinize those holdings. If nicotine addition was recognized as a disability, could employers be required to allows the use of electric cigarettes as a reasonable accommodation? Would it be difficult for an employer to show the use of an electric cigarette in the workplace is an undue hardship when the employer allows the use of nicotine infused gum or other prescription medicines at work?
When I started writing this post I was inclined to recommend prohibiting the use of this new technology in the workplace. After thinking about the answers to the questions I proposed above, I’m not certain I would recommend an employer prohibit the use of electric cigarettes in the workplace. In the end employers should carefully consider and be able to articulate their legitimate business interest before electing to prohibit the use of electric cigarettes in the workplace. As of the writing of this post, there are no reported employment court opinions discussing the use of e-cigarettes in the workplace. With the widening use of this new technology, reported cases are sure to be on the horizon.