Smoking in the workplace is slowly becoming an antiquated notion. Federal and state laws ban smoking in some places, and an increasing patchwork of local ordinances decreases the availability of indoor and even outdoor smoking in some circumstances. Complicating matters, as it usually does, is the rise of new technology that straddles the line between permissible and impermissible conduct – the e-cigarette. The question employers now have to struggle with is whether these devices, which purport to alleviate the harmful effects of smoke on both the user and those inhaling second-hand, should fall under broad workplace bans on smoking.
As a preliminary matter, local smoking ordinances that explicitly include e-cigarettes provide the easiest answers. For instance, Lexington, Kentucky, amended an indoor smoking ban to include electronic cigarettes as part of its ban. However, other local ordinances that have enacted smoking bans that do not exclude e-cigarettes pose a more difficult challenge. Employers in these instances should err on the side of caution and assume e-cigarettes are included in the smoking band unless specifically excluded.
In workplaces that are not under a general legal ban on smoking, however, policies on smoking in the workplace are still largely up to the employer – there is no law that prohibits a workplace from banning e-cigarettes. Employers can regulate many aspects of employee behavior such as cellphone use or internet surfing, and workplace anti-smoking policies fall under these types of activities. When an employer chooses whether to allow e-cigarettes in the workplace, it should communicate the decision explicitly to the employees. A direct statement either way is necessary to clarify policy, which is especially important in light of antidiscrimination laws that protect smokers in Kentucky.
Under the law of Kentucky and a few other states, smokers are a protected class of purposes of hiring, firing and other employment actions. While these provisions have not been tested as to e-cigarettes, employers should be keenly aware that adverse employment decisions taken against e-cigarette users because of e-cigarette use outside the course of employment could very well run afoul of these antidiscrimination laws. These laws do, however, provide that the employee must comply with workplace policies regarding smoking, so clarity is key. Employers should also take care when considering an absolute ban on smoking of any kind during the workday itself – those with an addiction to nicotine could potentially trigger protections of the Americans with Disabilities Act that require reasonable accommodation on the part of an employer.