In most of the country, workplace smoking is either banned or highly regulated by state law. In states where smoking is permitted at work, it is often limited to a designated area of the work premises and may be illegal within a certain distance of the workplace’s entrances and exits.
Determining your legal rights when it comes to vaping in the workplace, however, is more complicated. This is because vaping is relatively new and is not universally regulated in the workplace by statute. To complicate matters, hundreds of municipalities across the country have enacted their own rules when it comes to vaping.
In addition, if you live in an area that does not regulate vaping, it’s important to understand that private employers don’t have to wait for state and local governments to act. Employers are generally free to enact their own workplace policies, which will most likely be deemed legal if they’re applied with equal force to all employees.
What is Vaping?
Vaping is the act of inhaling an aerosol, or vapor, that’s produced by an electronic cigarette ("e-cigarette"). The vapor is created when the e-cigarette heats a liquid that often contains nicotine and other additives and flavoring.
Vaping is often seen as a safer alternative to smoking cigarettes, although it carries its own set of health risks, including lung irritation, nicotine addiction, and potential long-term effects on heart and lung health.
Vaping and Federal Law
Under federal law, vaping products containing nicotine are regulated by the FDA through the Family Smoking Prevention and Tobacco Control Act, requiring manufacturers to submit products for review and authorization before marketing them.
While the FDA has refused to authorize flavored vapes (other than menthol) due to concerns they appeal to children, such flavors remain widely available.
State Law on Vaping at Work
How state laws deal with vaping varies greatly. Most of the actions taken by states can be broken down into some broad categories.
Some states include e-cigarettes or vaping in their statutory definition of smoking, tobacco, or nicotine. These states include Colorado, California, Delaware, District of Columbia, Hawaii, Indiana, Maine, Maryland, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, South Dakota, Utah, Vermont, West Virginia, and Wyoming.
The laws of these states do not all specifically mention vaping in the workplace. And they don’t all expressly ban vaping in the same places that smoking is banned. But it’s safe to say that these states are fairly restrictive when it comes to vaping. By including e-cigarettes or vaping in the definition of tobacco, nicotine, or smoking, these states generally don't allow you an unrestricted right to vape at work.
Some states specifically ban vaping at work. California is one of those states. Section 6404.5 of California’s Labor Code prohibits smoking tobacco products in most enclosed workplaces. At the same time, Section 22950.5 of California’s Business and Professions Code defines “smoking” to include “an electronic smoking device that creates an aerosol or vapor, in any manner or any other form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.”
Similarly, it defines “tobacco product" to mean “an electronic device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, chewing tobacco, pipe tobacco, or snuff.” The bottom line: no vaping at work in California.
Many states have statutes that apply to certain facilities. School buildings, playgrounds, college campuses, childcare facilities, and hospitals are places where vaping is often banned by specific statute. If you work in one of these facilities there is a good chance that you will have no right to vape, even in the absence of a state statute that expressly bans vaping in the workplace.
Many states leave it to local governments. Hundreds of municipalities have banned vaping in enclosed workplaces and at specific work establishments. One complication is that policies tend to be inconsistent within any give state. In Illinois, for example, there are many localities that have banned vaping in all enclosed workplaces, including bars and restaurants, but there are also a few that have exempted bars. These types of inconsistencies can happen in any state where regulation takes place at the local level.
Vaping and the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) prohibits discrimination in the workplace based on an individual’s qualified disability. If your employer permits vaping and you have a disability that’s aggravated by secondhand smoke you may be entitled to a reasonable accommodation at work. For example, your employer might have to create a designated smoking area away from the company’s work spaces.
Guidelines for Vaping at Work
Due to mounting health concerns, vaping is in the news almost daily and more federal and state laws appear likely. While the rules surrounding vaping are subject to change, there are two rules of thumb that you should follow:
- Comply with your employer’s vaping policy. In general, private employers have broad discretion when it comes to instituting work-related policies. If your employer has banned vaping there is a good chance it is legally entitled to do so by state statute, administrative code, or locally enacted regulations. In addition, remember that your employer is generally entitled to act even when there is no state law or regulation on the books. If your employer enacts and enforces a nondiscriminatory policy to ban vaping it will most likely be deemed legal by a court or state agency.
- Determine whether your state or municipality has banned vaping at work. Some states specifically ban vaping while others include it in the definition of tobacco or smoking. If you live in one of those states there is a good chance that you will not be permitted to vape at work. Similarly, the number of municipalities across the country that have banned e-cigarettes from enclosed workplaces or specific work localities are too numerous to list. Check with your state or local government if you are uncertain.
Consult an Attorney
Finally, if your employer has instituted a ban on vaping and you are unsure whether it has legal authority to do so, check with a labor or employment law attorney.