E-cigarettes – should employers allow them in the workplace?

5th August 2014

Amanda Okill

Recent research shows that smoking breaks and additional sick leave are costing UK businesses £8.7 billion in lost productivity every year* – so should employers recognise the increasing popularity of e-cigarettes and allow them in the workplace?

“E-cigarettes, or battery powered sticks which release nicotine when inhaled and replicate smoking, aren’t currently unlawful because they’re not included in the Health Act 2006, which prohibits smoking in enclosed or substantially enclosed workplaces,” says Amanda Okill, an employment law specialist with leading south east law firm Furley Page.

“Research suggests that the average smoker takes four smoking breaks a day, lasting 10 minutes, so it could be argued that by allowing the use of e-cigarettes in the workplace, productivity would be improved,” says Amanda.

“However, there are a number of issues employers need to consider before deciding whether to allow them or not.”

The charity Action on Smoking and Health estimates that 1.3 million people are now using e-cigarettes. With their popularity continuing to grow, many employers are being approached by staff who want to consume their e-cigarettes at work.

In spite of the announcement that Wales may ban their use in public places, there are no immediate plans to make them illegal in the rest of the UK so employers can lawfully allow staff to use e-cigarettes in an enclosed workspace – but they don’t have to, says Amanda.

“While it’s anticipated that some e-cigarettes will be authorised as medicines, at present they are not so there’s no compelling health reason why they should be allowed.

“However, employers might want to consider time wasting. Non-smoking staff and many employers take issue with smokers disappearing outside for 10 minutes at a time at various intervals throughout the day, so allowing e-cigarettes to be used in the workplace could prevent this – though thought should be given to where and when they are used.

“If the employer is not comfortable with employees consuming e-cigarettes at their desk or workstation, they may wish to specify where and when they can be used,” adds Amanda.

“The views of other staff and whether they wish to work alongside someone smoking an e-cigarette must also be kept in mind. Pregnant women and those with medical conditions, for example, may have strong objections to working in these conditions.”

While there are no conclusive findings as to whether or not e-cigarettes pose a health risk, some experts have questioned the safety of the chemicals used in them and the British Medical Association has recommended more research into their effects.

Employers may also legitimately wish to take into account the public image of their organisation and whether this could be hindered by their employees’ use of e-cigarettes in the workplace. Schools, care homes, health establishments, restaurants and catering industries may not want staff using them in full view of clients or service users.

“Until such time as the legal position is clear, employers have the freedom to choose their approach to the issue,” says Amanda. “It’s advisable for employers to update their smoking policy, if one exists, with clear guidance on their position.

“If employers are unsure of the stance they wish to take, this would be an ideal issue to put to the staff in consultation. Once a decision is made, as with all policies, it should be consistently applied across the organisation, with the directors, management and team leaders on board.”

For more information and advice, contact Amanda Okill on 01227 763939.

* Source: British Heart Foundation

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