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A Hazy Issue

An employee sitting at her desk appears to be smoking a cigarette, complete with puffs of smoke when she exhales. When a shocked manager approaches her, she explains that she's using an electronic cigarette and the smoke is vapor. What does an employer do now?

Tuesday, June 25, 2013
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"For the human resource executive trying to address this right now, the best advice is to proceed with caution," says Tom Glynn, Ph.D., director of both the American Cancer Society's Cancer Science and Trends and its International Cancer Control.

FDA regulations are expected by the end of this year, he says, which would provide more consistency in manufacturing of the more than 200 types of e-cigarettes on the market and better insight into health impacts to help employers make informed decisions.

"If you leave the scientific and health realm and get into the human relations realm, that's one of the biggest things the HR person is going to deal with when, say, an employee complains that someone in the office or cubicle next to them is smoking."

Electronic smoking, or vaping, is becoming more prevalent, according to the Centers for Disease Control and Prevention, which this February released study results that show that one in five adult smokers in the United States have tried e-cigarettes, up from one in 10 a year earlier. Introduced to the U.S. in 2007, electronic cigarettes -- battery-operated products that vaporize nicotine, flavoring and other chemicals that are inhaled by the user -- do not fall under FDA regulation of drugs or devices because a decision in 2010 from the U.S. Appeals Court for the D.C. Circuit ruled that e-cigarettes are not considered therapeutic.

The American Cancer Society, like many organizations, still is waiting to hear more on the safety of e-smoking, Glynn says.

"I would say the American Cancer Society finds them intriguing, and a potential -- and please underline potential -- tool for quitting smoking. But electronic cigarettes are still saddled with a lot of question marks."

http://www.hreonline.com/images/136814450ecigsL.jpgWhile the science is still out on electronic cigarettes (one limited 2009 FDA study showed carcinogens in some of 18 varieties tested) and the legal landscape is developing around e-smoking in public, some companies are electing to snuff out this relatively new product in the workplace before those questions surface, says Steven Noeldner, partner and senior consultant in the total health management specialty practice at global consulting firm Mercer.

"It does come up in almost every one of the programs I'm involved in, especially if we're putting a workplace no-tobacco policy in place or a wellness program," Noeldner says. "It's generally true that most employers that impose non-tobacco use programs usually try to be all inclusive. They do include e-cigarettes."

Because most e-cigarettes are designed to look like their traditional tobacco-leaf counterparts, allowing their use works against a no-smoking environment, Noeldner says. "It's counter to the intent of a non-tobacco use policy."

Employers shouldn't embrace them as an effective smoking cessation tool, either, he says, though there have yet to be any long-term studies confirming or undermining that idea. All the organizations he's worked with are opposed to e-smoking at work. Whether an employer would hold e-smokers to a higher, "smoker" rate on employer-sponsored insurance plans is a decision to be made between a company and its insurance plan representatives, he says.

"They are a false crutch," he says. "They can reinforce the ongoing habit of having that cigarette in your mouth."

Crafting a policy to ban e-smoking may be as simple as adding e-cigarettes to an existing no-tobacco policy, says San Francisco-based attorney Cheryl Orr, co-chair of the national labor and employment practice at Drinker Biddle & Reath.

"In creating a policy, if companies want to ban e-cigarettes, there's no reason why they can't," she says. "They just need to be clear in their policy. If they want it to be effective, they probably need a clause in there that tells employees they need to report it, and they need a no-retaliation provision."

Because some municipalities have created bans on e-smoking in public, employers also can check with city and county governments that may already prohibit it at work, Orr says. New Jersey is the only state so far to ban e-smoking anywhere traditional smoking is outlawed, though legislators in other states have considered similar measures.

"If you're a company with an employee assistance program and that includes smoking cessation assistance, you can alert them to that," she says. "Also, if you're a unionized workforce and there's a contradiction, the collective bargaining agreement would trump the policy. Have employees acknowledge that they've read the policy. It's really not different than a regular tobacco ban."

Celia Joseph, counsel at employment law firm Fisher & Phillips' Philadelphia office, says no company has approached her specifically about e-cigarettes yet, but she has raised the issue when crafting tobacco policies.

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"Employers may want to ban them. They may be concerned because they don't want the look of someone smoking in the workplace. Could they be annoying? Could they be harmful? We don't know," she says. "I think employers should consider at least what their response would be if the issue came up."

Compiling an ad hoc committee with scientific, medical and human resource perspectives could help employers consider the implications of any stance on e-smoking, she says.

"Then make a recommendation based on a thoughtful discussion," Joseph says. "The other legal issue is, if any employer decided to ban it, what are the legal rights of individuals? If there's an intention of banning e-cigarettes, in addition to the legal issues, stay apprised of developing science."

A ban on hiring e-smokers is another legal gray area, Joseph says, as some states even provide employment protection to conventional smokers.

"Generally, the courts have not protected smokers as a group under the ADA," she says. "So the issue becomes, if they decide to include e-smokers as smokers, what happens?"

Some organizations already do. Texas-based Baylor Health Care System's nicotine-free hiring policy, for example, classifies e-cigarette smokers as nicotine users and all applicants must test nicotine-free. The same goes for applicants at Virginia's Bon Secours Health System.

Health Care Service Corp., and its Blue Cross and Blue Shield health plans in Illinois, New Mexico, Oklahoma and Texas, has included a ban on electronic cigarettes in its tobacco-free workplace policy, says Judith Levy, the corporation's wellness specialist.

"Nicotine addiction is a chronic condition and employees must be supported in their efforts to quit," she says. "Employees must sign a tobacco-user affidavit stating that they and/or dependents do not use tobacco for at least three months prior to any open enrollment changes."

Helen Darling, CEO of the National Business Group on Health, says organizations should consider e-smoking to be another form of tobacco use. The organization published a fact sheet for employers about how to tackle e-cigarette use, including how to ban it from a workplace.

"We want to eliminate it as fast as we can as part of a wellbeing and health improvement initiative," she says. "Electronic cigarettes are, in their own way, just as bad as cigarettes. Most employers banish smoking both in the workplace, outside the workplace and in company cars or trucks -- and that's the use of tobacco, not just smoking."

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