As electronic cigarettes continue to grow in popularity as an alternative to tobacco, employers must decide whether their “no smoking” policies should also prohibit “vaping” in the workplace. Under Michigan’s Smoke-Free Air Law, smoking is prohibited in all enclosed public and private workplaces where at least one employee is employed. Even before Michigan enacted this law, employers have routinely prohibited smoking in the workplace, except in designated areas outside of the facility.
Under the law, however, e-cigarettes are not subject to the statewide workplace smoking ban because they are not considered to be a tobacco product. Similarly, there is no federal law prohibiting e-cigarette use in the workplace and correspondingly, no federal law prohibiting discrimination based on their use. In the absence of legal restrictions, a growing number of employers are choosing to enhance their policies to more broadly define smoking to include the use of e-cigarettes.
With that in mind, any employer considering a policy change should perform a cost-benefit analysis before taking action. Among the considerations are (a) the elimination of current and anticipated complaints about e-cigarette use from non-smoking employees, customers and others who express concern about the vapors and their possible health hazards; and (b) whether a ban would impact employee productivity and morale. Regarding the latter, such a ban could be inconsistent with a policy promoting smoking cessation if employees are using e-cigarettes as a means to quit smoking.
As the law and health studies continue to evolve on this subject, it is recommended that any proposed policy be concise, aligned with reasonable business interests, and implemented after reasonable notice to employees. Existing policies should also be routinely reviewed to assure they comply with state and federal laws. Should you have any questions regarding a your current smoking policy, or any other workplace policies, please feel free to contact a member of Berry Moorman’s Labor and Employment Group.