Simon Says: Just Blowin’ Smoke?

“Mad Men” transports viewers to a workplace that no longer exists — where men ruled the proverbial roost, the legendary three-martini lunch was a way of life, and lighting up in the office was common — if not de rigueur.

Fast forward fifty years — and women are running Fortune 500 companies like Xerox and GM, martinis have been replaced by designer drinks and soy lattes, and workplaces have banned smoking and — in some cases — smokers too. But, the old adage “where there’s smoke, there’s fire” has a new twist. Just imagine Don Draper “vaping” in the office. Yes, picture him inhaling the vapors from an electronic, or e-cigarette.

For now, e-cigarettes— unlike traditional cigarettes — are largely unregulated (unless they’re marketed for therapeutic purposes). Since e-cigarettes are not yet viewed as “smokes” and using them is not technically “smoking” in most cases, employers have some flexibility in how they treat them. But that may soon change. In addition to some state and local laws addressing the use of e-cigarettes, the Food and Drug Administration (FDA) recently proposed extending its authority to regulate “tobacco products” to e-cigarettes — even though they don’t involve the burning of tobacco or inhaling tobacco smoke.

E-cigarettes have been around for over a decade, so why is the FDA concerned now? In the past few years, e-cigarette use has taken off, giving “e-smokers” hits of nicotine and other additives in an odorless aerosol form. Although e-cigarettes are still a bit of a novelty, a recent CDC study found that roughly one in five US adult cigarette smokers have tried them, with the number nearly doubling from 2010 to 2011.

While the adverse health effects of smoking have been well-documented, what about e-cigarettes? Some experts say vapor from e-cigarettes is safer than cigarette smoke, but others disagree. Whether their use poses a health risk — or raises the same concerns about secondhand smoke and nonsmokers’ sensitivities that prompted most states to restrict smoking in the workplace – is unclear. And the FDA is looking for answers as it tries to fashion a plan for regulation.

Anti-smoking campaigns are frequently part of an employer-sponsored wellness program, and employers can offer financial rewards for participating and penalties for opting out. So, how does vaping fit into the mix? The jury’s still out on whether an e-cigarette user qualifies as a “smoker” or a “nonsmoker” for these programs. While the FDA acknowledges that some limited studies suggest e-cigarettes may offer short-term potential for smoking reduction, it says there’s no evidence of a long-term cessation benefit. But stay tuned.

Many states have laws limiting or eliminating smoking in the workplace, but they vary from outright bans to restricting smoking to designated areas. Even if state or local law doesn’t require smoke-free workplaces, it’s widely acknowledged that employers can. Some employers refuse to hire smokers, but some states think that goes too far. So they’ve put laws in place to prevent employers from discriminating against employees or job applicants based on tobacco use.Because most smoking laws were enacted before e-cigarettes took off, they simply don’t address them. Currently, there’s no federal law that restricts where people can use e-cigarettes, but a few states — and some localities — have already redefined “smoking” to include vaping.

While waiting for the law to catch up to technology, what’s an employer to do? We think it’s time to revisit your “smoking” or “no-smoking” policy and wellness program definition, and make sure they still fill the bill. If you want to restrict or ban e-cigarettes in the workplace or encourage your employees and their family members to avoid using them, we think you should say so.

What do you think?

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