What does the law say about smoking?
On the 1st of July 2007 s.(2) and s.(7) of the Health Act 2006 was enforced, making it an actionable illegal offence for individuals to smoke in any enclosed premises. This legislation was implemented in an attempt to ensure the protection of employees and the public from the harmful effects of second hand smoke.
Smoking is becoming increasingly less fashionable. As a result, many argue the smoking ban should have been implemented sooner, given that an increasing number of the public regard smokers as having a voluntary choice in the matter. It is without a doubt, that smoking is harder to do now than it has ever been before.
It is not surprising in the context of this anti-smoking era, that a market promoting safer and more health conscious alternatives is upcoming, especially when the true lucrativeness of the tobacco industry is taken into consideration.
What about electronic cigarettes?
One of the most popular alternatives to ‘cancer sticks’ is the E-cigarette, or as most know it, ‘vaping’. These electronic nicotine delivery systems (ENDS) do not contain tobacco but instead heat nicotine creating a vapour which the user inhales simulating the act of conventional smoking. The fact there is not a combustible substance is why such devices are championed as an effective and worthwhile alternative, for it is the act of inhaling deadly chemicals found in cigarette smoke which is what causes the tar that kills.
In theory, E-cigarettes are not covered by the HA 2006 because they do not contain tobacco and do not emit toxic smoke. This means that they are not defined as ‘smoking’ according to Section 1(2)(a) and 1(2) (b) of the 2006 Act, meaning employees could legally smoke E-cigarettes in the workplace.
So if E-cigarettes pose no legal threat, why is it that certain companies have decided to out-law the devices completely on their premises? Starbucks being one of the most recent international organisations to do so, along with the majority of Airlines. Some suggest it is because the true health effects are not yet known. This is in light of advice by the World Health Organisation (WHO) that E-cigarettes should be banned in public places for fear they still pollute the air with toxic chemicals that can be harmful to by-standers. Surely vapour isn’t as harmful as the smoke caused by regular cigarettes?
Why are E-Cigs banned from many workplaces?
The major reason many businesses have decided to out-law vaping is because of the image it creates to other employees, and ultimately clients; it essentially undermines the enforcement of their smoke-free policy. This is of particular importance in an era that does not look favourably upon the habit, especially as the World Health Organisation has advised there should be tougher regulations on all products that make smoking appear ‘glamourous’ to children. The fear of making smoking look like an acceptable or attractive habit through accommodating or allowing the use of ENDS in the work place is undoubtedly the reason organisations have implemented a ban. There is after all, no concrete evidence that supports vaping is as harmful as smoking products containing tobacco.
But then a question arises.
What if E-cigarettes are regarded as medication in the near future?
This is a possibility as by 2016 ENDS will be regulated by the Medicines and Healthcare Products Regulatory Agency, rather than under consumer products in the UK. This means that some devices may be authorised as medicines if manufacturers can prove their therapeutic benefits. Some experts have already called for them to be made available free on the NHS as quit-smoking aids.
This certainly does pose a quandary for organisations and businesses, especially as the Department of Health has said that there is no ban planned in England of the use of E-cigarettes in public places, despite Wales considering measures to curb their use.
What should employers be doing in practice?
It may be that some organisations revisit their policies on ENDS. They can either take a restrictive approach towards the habit generally by banning their use completely. Or, they can recognise that ENDS may help their employees in the long-term to finally give smoking the boot for good. The latter may well be the case for many organisations in the future, especially if their employees are prescribed them as medication.
Whichever stance is taken, it is evident E-cigarettes are increasingly topical and are not going away any time soon. That is why it is essential for businesses of all sizes to at least keep in mind these points when taking a position on ENDS. It is strongly advised that businesses should:
- Have a clear, separate policy on the use of E-cigarettes in the workplace (whatever stance that is taken) in their Handbook or contract of employment
- Provide a separate place for ENDS users to that of normal tobacco smokers in order to protect them from the harmful effects of conventional smoking
- Outline clearly the disciplinary proceedings if employees are found using E-cigarette devices on work premises when they are prohibited
- Offer in-house support, or direct to external services that can aid employees to give up the habit for good.
For more information on E-cigarette policies or any aspect of HR or employment law contact us on 0114 3032300 or email firstname.lastname@example.org. For free information and guidance visit our website www.bhayanilaw.co.uk