Do e-cigarettes belong in the workplace?

Employers should be revising and updating smoking policies, say experts
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 09/24/2013

They may look like cigarettes and even “smoke” like them, but electronic cigarettes don’t contain tobacco — which is why a lot of people are trying them out in a bid to live healthier lives.

But are e-cigarettes really the better option? And how should employers respond if they turn up at the workplace?

For now, it’s a challenge fully understanding the health benefits or risks of these relatively new devices. While there is variation in the design, the basic functioning is pretty similar, according to Melodie Tilson, director of policy at the Non-Smokers’ Rights Association in Ottawa.

When a person inhales, a sensor detects the air flow and activates a heating element or atomizer that then vaporizes a solution the user inhales and exhales. The vapour may contain water, propylene glycol or glycerine, flavouring and nicotine, she said.

Second-hand vapour may not be as dangerous as smoke but it’s still a concern, said Tilson, and a lack of basic manufacturing standards could lead to battery malfunctions or inconsistent amounts of nicotine.

“It’s fair to say that there isn’t consensus within the health community or the tobacco control community about this product,” she said. “There just isn’t enough research to date, enough robust, high-quality scientific research that enables us to come down firmly on one side or another on this issue.”

Even Health Canada is unsure, though it takes a cautionary approach: “As the safety, quality and efficacy of these products remains uncertain, Health Canada continues to advise Canadians not to use electronic cigarettes as they may pose health risks.”

E-cigarettes that contain nicotine or have health claims fall under the Food and Drugs Act and its regulations and require a market authorization by Health Canada prior to being imported, advertised or sold. To date, none of these have been authorized by Health Canada, it said.

Electronic cigarettes that do not fall within the scope of the Food and Drugs Act may fall under the Canada Consumer Product Safety Act which requires companies to ensure the consumer products they manufacture, import, advertise or sell do not pose a danger to human health or safety.

However, it’s pretty easy to find e-cigarettes at local convenience stores or online.

“With these things prominently displayed on countertops and all kinds of retail outlets, it’s hard for the public to think anything other than these products are benign and possibly helpful given the kind of promotional messages that are out there,” said Tilson.

The enforcement just hasn’t been there, from the beginning, she said.

“The optimum regulatory regime is not that obvious given that the jury’s kind of out on these products, whether they’re helpful or harmful or whether they’re just another route to smoking,” she said.

In the absence of proper research, it’s about taking a cautionary approach, said Tilson.

“If there is robust research that comes out that shows that these devices can be effective in helping smokers quit, then we would definitely favour less stringent regulation.”

Even in non-office environments, there would be concerns for employers, said James Donato, owner of Workplace Law Consulting in Toronto.

“There’d be some issues enforcing that and if someone is operating machinery, is that going to be a distraction?”

If they don’t contain nicotine, e-cigarettes still may be considered “tobacco accessories” under the Smoke-Free Ontario Act, he said, and the health effects of the vapour are unclear.

“That’s a health and safety issue, that’s an air quality issue, so because we’re not sure of the health effects as of yet, as per Health Canada, I would recommend employers not to allow (them),” he said. “The accumulation of vapours is still going to put non-smokers in an uncomfortable position, so we do have to still have consideration for the non-smokers.”

For now, employers should look at changing their rules, said Donato.

“I would recommend policies are revised to include the definition of e-cigarettes. Before an employer could enforce the non-use or non-allowance of cigarettes, it has to be in their smoking-in-the-workplace policy.”

Health sciences centre prohibits e-cigarettes

The Thunder Bay Regional Health Sciences Centre in Ontario is doing just that. As part of a revision to its smoke-free workplace policy, the use of e-cigarettes — by patients, visitors and employees — is prohibited on its grounds.

“It really goes back to what Health Canada says — the safety, the quality, the efficiency is unknown or uncertain at this point in time, and that’s why we’ve included it in the policy,” said Kelly-Jo Gillis, manager of preventive health services at the centre.

There is no prohibition against an employer preventing an employee from using the electronic device at work, according to Howard Levitt, a senior partner at the law firm Levitt in Toronto.

“The fact that others are not harmed does not prevent an employer from prohibiting it in their workplace. Generally, employers can make whatever restrictions they want, outside of the union context, within their workplaces.”

And people with smoking addictions are already accommodated with breaks, he said.

“The fact that it is indistinguishable from cigarettes is reason enough for employers to reject it. But the real answer is that employers can choose their accommodation. As long as they permit other accommodations such as smoke breaks, they need not permit this.”

Smoking-cessation device?

Should there come a day where the evidence is there that e-cigarettes are a clean, safe and effective nicotine delivery system, then the Thunder Bay Regional Health Sciences Centre would look at revising its policy to include e-cigarettes as a useful tool for quitting smoking, said Gillis.

And they may have that potential, according to a 2013 four-country study (from Canada, the United States, United Kingdom and Australia) in the American Journal of Preventive Medicine.

“Because trial was associated with non-daily smoking and a desire to quit smoking, (e-cigarettes) may have the potential to serve as a cessation aid,” it said.

“If credible evidence can be provided that (an e-cigarette) reduces the number of cigarette smokers and does not attract use among non-smokers, then the net public health effect is likely to be positive.”

But for now, employees using e-cigarettes are treated the same as smokers by insurance companies such as Sun Life.

And in the United States, Walmart and UPS have decided electronic cigarettes are an unhealthy habit rather than a stop-smoking tool and are imposing tobacco-use penalties on employees who use them, according to an Aug. 29, 2013, article on ModernHealthcare.com.

“FDA testing has determined that various samples (of e-cigarettes) have carcinogens and other toxic chemicals,” said UPS spokesman Ivette Lopez. “They’re just not proven to be safe.”

The momentum is definitely in the direction of regulating these products more responsibly, said Tilson.

“If people who are trying to quit or cut down or who have quit successfully in the past now start going to work or into bars and they see people using these things that, from a distance, really look like cigarettes, we don’t want that triggering them to go back to smoking, to start smoking, to smoke more and so we’re encouraging workplaces to develop their own policies.”

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