New York and New Jersey both prohibit workplace smoking. However, the growing popularity of electronic cigarettes poses new questions about employer anti-smoking policies.
E-cigarettes do not contain tobacco, but rather use heat provided by a battery to vaporize a liquid solution containing nicotine. Accordingly, they often do not fall under state laws governing workplace smoking.
For example, the New York State Clean Indoor Act defines “smoking” as the “burning of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco”, a definition that arguably does not prohibit vaporization. New Jersey is currently the only state that amended its laws to expressly include electronic cigarettes. The Smoke-Free Air Act specifically prohibits the use of electronic smoking devices in workplaces and other public indoor spaces.
When state laws do not expressly prohibit “vaping,” employers must decide whether to implement policies that ban all types of smoking in the workplace. Supporters of e-cigarettes argue that they do not pose health risks and may improve employee productivity by eliminating the need for “smoke breaks.” Meanwhile, critics contend that the tobacco-free cigarettes may still contain dangerous chemicals, bother co-workers, and appear unprofessional to customers or clients.
The bottom line is that, until state and local laws are enacted, employers are free to weigh the pros and cons to make their own policy determination. The key to avoiding problems is to ensure that employees understand what is and is not permitted.
If you have any questions about electronic cigarette policies in the workplace or would like to discuss the legal issues involved, please contact me, Donald Pepe, or the Scarinci Hollenbeck attorney with whom you work.
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