By Rita Pyrillis
Oct. 25, 2013
Those huddled masses of smokers gathered near office buildings across the country may soon be coming in from the cold as more workers embrace electronic cigarettes as an alternative to tobacco.
The glowing sticks of vapored liquid nicotine are growing in popularity, but are striking up controversy among employers who aren’t sure if they should be banned at work, according to human resources experts. The e-cigarette is not regulated but has come under increased scrutiny from doctors and scientists. The Food and Drug Administration is expected to announce soon whether the devices are considered tobacco products, which would mean greater restrictions on how they are produced and marketed.
Unlike traditional smokes, which contain harmful levels of carcinogens and emit a lingering cloud of fumes, electronic cigarettes are odorless. Proponents say they contain few, if any, cancer causing ingredients, although critics dispute that claim. While they are not marketed as smoking-cessation tools, many use e-cigarettes as an alternative to tobacco. But with employee wellness programs sweeping the land and more workplaces becoming smoke-free, many employers are turning up their noses at anything that smacks of cigarettes.
This makes no sense to proponents like Peter Denholtz, who say that e-cigarettes could actually be a boon to productivity.
“Think about how much time it takes people to get their coats, take an elevator ride down 30 floors and huddle in below-zero temperatures for a smoke break,” he said. “It’s absolutely crazy not to let workers use e-cigarettes in the workplace.”
Last month, Denholtz co-founded the first electronic cigarette emporium in New York’s trendy SoHo neighborhood, the Vaporium, where patrons can sidle up to the bar and order e-cigarettes with flavors like watermelon and cotton candy. There are similar venues in California and Washington state.
Business has been brisk, according to Denholtz , but he sees an untapped market in the high-rise offices of Manhattan, particularly along Wall Street. The Vaporium plans to launch an e-cigarette delivery service in November.
“Wall Street is perfect for this,” he said. “These folks work hard and play hard. They can’t smoke on the trading floors, and they won’t have to leave their desks while they’re trading.”
But before employers decide whether to ban or allow workers to “vape” at their cubicles, as puffing on an e-cigarette is called, they should check on state and local laws regarding smoke-free workplaces, said Celia Joseph, of counsel with the law firm Fisher & Phillips in Philadelphia. A number of states are considering legislation to ban e-cigarettes from the workplace, although only New Jersey has passed such a law.
“There are many legal issues employers will need to consider, and they are all over the place,” she said. “First, they will have to see if they are covered by bans in their city or state, then they will look at their handbooks and revise definitions. The confusion is reflected in company policies. Some will say you can’t hire a nicotine user and that includes e-cigarettes, but some e-cigarettes don’t contain nicotine.”
Employers need to clarify their objectives when developing an HR policy, said Thomas Bright, a shareholder with the law firm Ogletree Deakins in Greenville, South Carolina.
“Do you want to prohibit the use of tobacco products, do you want prohibit nicotine, or is it just the smoke you have a problem with?” he said. “These are all very different issues. Until you know what you’re trying to accomplish you don’t know what kind of policy you need.”
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