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Know The Law: E-Cigarettes at Work

Written by: Adam M. Hamel

Published in the Union Leader

Q. Some of my employees have asked whether they can use e-cigarettes at work. Are they covered by New Hampshire’s laws on smoking in the workplace?

A. Electronic cigarettes are battery-operated devices, similar in size and appearance to traditional cigarettes, that heat and vaporize a liquid, usually containing nicotine, along with other ingredients. E-cigarette users inhale the vapor in much the same way that smokers inhale cigarette smoke. Proponents of “vaping,” as the use of e-cigarettes is called, say that it is safer than smoking traditional cigarettes, and can be an effective method of reducing, or even stopping, smoking. These claims are disputed by some, but what cannot be denied is the growing popularity of vaping. The sale of e-cigarettes in the United States is estimated at $1.5 billion, and is expected to grow by about 24% annually over the next few years.

As the use of e-cigarettes becomes more wide-spread, many employers are wondering if their use is covered by current laws and workplace smoking policies. Currently, the use of e-cigarettes in the workplace is largely unregulated in the United States, although there are movements underway throughout the country to try to change that.  Many large, nation-wide employers, including Wal-Mart, General Electric, Target and Home Depot, have adopted policies specifically banning e-cigarettes from the workplace, just like traditional cigarettes.

Currently, there are no New Hampshire laws specifically regulating vaping in the workplace. (New Hampshire law does, however, specifically prohibit the sale of e-cigarettes to minors, and prohibits the use of e-cigarettes at public educational institutions.) In New Hampshire, smoking in the workplace is governed by the Indoor Smoking Act. Under the law, smoking is prohibited in any workplace where four or more people work. Employers may designate a “smoking-permitted” area, but only if that area can be effectively segregated. Any employer may designate the entire workplace smoke-free. The Indoor Smoking Act defines smoking as “having in one’s possession a lighted cigarette, cigar, or pipe, or any device designed to produce the effect of smoking,” but it is unclear whether vaping falls under this definition.  Even so, some experts caution employers against allowing employees to vape at work.  Non-vaping employees may complain that the vapor from e-cigarettes irritates their eyes or causes breathing problems, which could lead to workers compensation claims or other problems for employers.

Until specific laws or regulations are enacted, New Hampshire employers may wish to treat e-cigarettes in the same manner as traditional cigarettes in connection with their workplace smoking policies.

Adam Hamel can be reached at [email protected]

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law.  Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or emailed to [email protected] Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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