Business Law paper

Safety & Health

‘E-Cigarettes’ in the Workplace: Where There’s No Smoke, There Still May Be Fire

Electronic or ‘‘e-cigarettes,’’ battery-powered devices that use tobacco to generate a vapor containing nicotine, flavor and other chemicals while supposedly avoiding exposing the user to some of the harmful effects of cigarette smoke, are cropping up here and there in the workplace, requiring HR departments to proac- tively develop policies governing their use.

Since the federal government has yet to sign off on the safety of e-cigarettes, health and HR practitioners recommend that employers are best off treating them like traditional cigarettes.

‘‘General sentiment around HR is to include e-cigarettes under the category of tobacco products,’’ Michael Wood of

Towers Watson told Bloomberg BNA.

George Boué, vice president of human resources at Stiles Corporation, a commercial real estate firm in Fort Lauderdale, Fla., told Bloomberg BNA Nov. 13 that HR would be well ad- vised to address the issue of e-cigarettes at work while it re- mains a fairly minor concern.

‘‘In the HR world, if you can address [an issue] before it hap- pens, as opposed to after it flares up and causes controversy, it’s always better,’’ Boué said.

E-Cigarettes not fully vetted by FDA. According to a Food and Drug Administration web page, ‘‘As the safety and efficacy of e-cigarettes have not been fully studied, consumers of e-cigarette products currently have no way of knowing whether

Inside this Month

Special Report: Wage and Hour: Employer Liability for Untimely Meal and Rest Breaks........................... S1

Safety & Health: ‘E-Cigarettes’ in the Workplace: Where There’s No Smoke, There Still May Be Fire ................... 1

Disabilities: Attorneys, Consultants Provide ‘Game Plan’ for OFCCP’s Rules............................................ 5

Talent Management: Survey, Practitioners Say Methods at Global Employers Need Overhaul ............. 7

Performance Appraisals: Annual Appraisals Seldom Lead to Behavioral Change, Webinar Told ................. 10

Spousal Benefits: DOL Guidance on Same-Sex Spouses Mirrors IRS’s, but There is Divergence ..................... 11

Discrimination: Gray Areas Remain on Background Checks Under EEOC Guidance, ABA Speakers Say ....... 14

DEPARTMENTS

Conference Calendar .................... 3

Legal Insights................................ 4

Compensation & Benefits News ...... 9

HRfocus News Briefs .................... 16

ISSUE 91-1 January 2014

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e-cigarettes are safe for their intended use, how much nicotine or other potentially harmful chemicals are being inhaled during use or if there are any ben- efits associated with using these products.’’

E-cigarette manufacturers sometimes claim that their products can help cigarette smokers who wish to quit, but the FDA indicated in warning letters it sent to five such companies on Sept. 8, 2010, that it regards such claims as unproven. For example, the FDA cited one company, E-CigaretteDirect LLC, for ‘‘statements [that] suggest that these products are intended for use as smoking deterrents or to re- duce dependence on traditional tobacco products, and are also capable of delivering nicotine.’’

The FDA has had authority over tobacco products since the 2009 enactment of the Family Smoking Prevention and Tobacco Control Act, and is moving to issue a proposed rule extending that authority to e-cigarettes.

The FDA’s skeptical attitude toward e-cigarettes is due to the fact that ‘‘there have not yet been clini- cal trials as to whether they are a safe and effective aid for quitting smoking,’’ Michael Wood, a Seattle- based senior consultant in health management at Towers Watson, said in a Nov. 12 interview with Bloomberg BNA.

Like any other tobacco product? Meanwhile, e-cigarette use has clear implications for the work- place. ‘‘We refer to [e-cigarette use] as tobacco use,’’ Helen Darling, the outgoing president and CEO of

the National Business Group on Health, said in a Nov. 12 interview with Bloomberg BNA. She com- pared smoking e-cigarettes to chewing tobacco, which is known to cause mouth and throat cancers. In her view, employers should ‘‘forbid [e-cigarettes] in the workplace, on the grounds of the company and in company-owned vehicles. She added that to sim- plify matters, ‘‘you can forbid ‘tobacco use’ rather than ‘cigarette use.’ ’’

In addition, Darling said, employers that offer health insurance to employees should impose a sur- charge on e-cigarette users’ premiums, just as they would for smokers. Claims that e-cigarettes are stop-smoking devices aren’t proven, she said, and should not be accepted as a reason not to charge us- ers a tobacco-use health insurance surcharge. ‘‘It’s like saying there’s no surcharge for smoking 10 ciga- rettes a day, only for a pack a day,’’ Darling said. ‘‘There is no safe level of tobacco use.’’

Secondhand effects from non-users inhaling e-cigarette vapor are as yet unknown, Darling said, ‘‘but these [manufacturers] are the same people who have been saying there is no harm from [tobacco] use for the past 30 years.’’

‘‘General sentiment around HR is to include e-cigarettes under the category of tobacco prod- ucts,’’ Towers Watson’s Wood said. ‘‘Airlines are starting to prohibit them onboard, and other work- places as well,’’ he said. ‘‘Usage at workplaces is mostly banned, and there are premium differentials for being a user of tobacco.’’

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‘‘The advice I am giving is that we need to take a wait-and-see approach about their use,’’ Wood added. ‘‘Secondhand vapor contains at least nicotine and maybe other things, so caution is indicated around pregnant women, the elderly and children,’’ he said. As if that isn’t enough, e-cigarettes could conceivably be used with products such as marijuana or other illegal drugs instead of tobacco, Wood noted.

Anecdotal evidence. So far there do not seem to be any formal surveys that would indicate how wide- spread e-cigarette use is in the workplace, but Boué conducted an informal survey among 10 South Florida businesses after receiving an inquiry from Bloomberg BNA and found only one company that had encountered their use.

‘‘One colleague at a liquor distributor said it has come up’’ that an employee uses e-cigarettes, and ‘‘even though it’s done outside others complain about the aroma,’’ he said.

‘‘Most employers haven’t thought about it,’’ added Boué, a member of the Society for Human Resource Management’s HR Disciplines Panel. ‘‘Larger em- ployers, especially with employees who work out- side, may have.’’

Nobody at Stiles, which employs about 300 people, has asked to use e-cigarettes in the work- place, Boué said, and he hadn’t thought about the matter himself until now although he used to special- ize in indoor environmental quality. The company complies with Florida’s indoor smoking ban.

According to Boué, ‘‘based on recommendations from labor attorneys,’’ smoking e-cigarettes will be categorized the same as smoking traditional ciga- rettes, with the same rules—‘‘it has to be done out- side.’’ He said he will be amending his company’s employee handbook to include e-cigarette smoking.

‘‘You’re still introducing an odor into the air, and there’s a question of whether it’s really healthier [than smoking],’’ Boué said. ‘‘From an employer per- spective, it’s not something you want done indoors.’’ He also agreed that it is likely employers will charge a higher health insurance premium to e-cigarette us- ers.

By Martin Berman-Gorvine

To contact the reporter on this story: Martin Berman-Gorvine in Washington at [email protected]

To contact the editor responsible for this story: Simon Nadel at [email protected]

CONFERENCE CALENDAR: JANUARY

22-24—Human Resources Professionals Association’s Annual Conference & Trade Show; location: Toronto; sponsor: Human Resources Professionals Association; fee: $1880 (Early Registra- tion $1610) (for members $1630 Early Registration $1365); telephone: 800-661-5319; web: http://www.hrpa.ca/conf2014/Pages/default.aspx

24—Reinvent Performance Management Through Neuroscience Seminar; location: New York; sponsor: Conference Board; fee: 1,235; telephone: 212-339-0345; web: http:// www.conference-board.org/conferences/conferencedetail.cfm?conferenceid=2615

27-29—Integrating Wellness and Occupational Health and Safety in the Workplace; loca- tion: Boston; sponsor: Harvard School of Public Health; fee: $2,250; telephone: 617-432-8080; web: https://ecpe.sph.harvard.edu/programs.cfm?CSID=WHW0912&pg=cluster&CLID=1

29-30—Employers’ Summit on Health Care Costs and Solutions; location: Washington, D.C.; sponsor: National Business Group on Health; fee: $1495 (early registration $1,375) (for members: $995); telephone: 202-558-3000; web: http://www.businessgrouphealth.org/events/index.cfm

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HRFOCUS ISSN 1059-6038 BNA January 2014

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