Are E-Cigarettes a Reasonable Accommodation?

 by Karen Elliott

Much has been written in the last several weeks about the rise in popularity of electronic cigarettes (e-cigarettes).  States are proposing legislation to protect teens as well as prohibit use in public places.  But the answer to whether they are safe or not is not yet known. 

With the rise in use, employers are already facing questions from employees who seek to use these devices in the workplace. Some 29 states and the District of Columbia have laws prohibiting smoking in the workplace, but the statutory language may not include e-cigarettes in the definition of “smoke.”  Therefore, if employers want to restrict the use of e-cigarettes, they will have to update their workplace rules.  Most employer handbooks prohibit smoking in the workplace, but are probably silent on whether the ban extends to use of e-cigarettes. 

Virginia bans smoking in certain instances, such as in public restaurants, but it is not one of the 29 states banning smoking in the workplace. That ban is left up to employers to decide.  The Virginia statute  defines “Smoking” to include the carrying of any lighted pipe, cigar, or cigarette of any kind, or any other lighted smoking equipment, or the lighting, inhaling or exhaling of smoke from a pipe, cigar, or cigarette of any kind. Thus, employers who want to make sure their workplace ban extends to e-cigarettes may want to look to the Virginia statutory definition as a starting place, but might want to consider adding “exhaling of smoke or vapor….”

Some of the articles promote e-cigarettes as a positive way to help individuals with smoking cessation.  So, the question arises, is it reasonable for employees to be able to use the e-cigarette at work?  What about employers who include nicotine as a banned “drug?” For workplaces that test individuals for nicotine (along with other substances), the use of e-cigarettes, raises an interesting question that science has yet to resolve. What makes this dilemma even more difficult, while e-cigarettes generally produce a vapor containing nicotine, others produce flavored vapor that does not contain nicotine. Should the ban extend to all e-cigarettes or just those containing nicotine, considering that the vapor, regardless of content, looks like “smoke” (thus perhaps confusing people as to whether or not smoking is allowed, and if so, what type?).

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