The use of e-cigarettes, or vaping, has increased in popularity over recent years. Where does this leave employers and what approach should they take to vaping at work rules?
The following guide for employers on vaping at work looks at what the law says and whether employers should allow employees to use their e-cigarettes on work premises. Where unauthorised vaping is treated as misconduct, for which disciplinary action can be taken against an employee, we also look at how this should be approached in any workplace policy.
Vaping at work rules
The law on conventional smoking in workplaces in the UK is clear. Under the Health Act 2006, smoking is prohibited in any enclosed or substantially enclosed public place located in England, including workplaces. This means that it is against the law to smoke in designated smoke-free premises. This is an offence for which the smoker can receive a fixed penalty or fine. Similar prohibitions against smoking in public places apply in both Wales and Scotland.
The 2006 Act also places a legal obligation on anyone who controls or is concerned in the management of smoke-free premises to ensure that no-one smokes on those premises. Any failure to prevent someone from smoking, or failing to display ‘no smoking’ signs, could again result in a penalty or fine. As such, employers, managers and anyone else in control of smoke-free premises must not only display notices prohibiting tobacco smoking, they must also take reasonable steps to ensure that their staff, customers and any other visitors do not smoke in buildings or other enclosed or substantially enclosed areas on their premises.
However, electronic cigarettes do not fall within the scope of the prohibitions set out under the 2006 Act, as they do not create smoke or burn tobacco. Essentially, therefore, they fall outside the legal definition of ‘smoking’. This means that they are not covered by the legal ban on smoking in enclosed places, including workplaces. There is also no separate legislation that regulates or prohibits the use of electronic cigarettes at work.
While debate continues about the level of safety of e-cigarettes, as the long-term impact of their use on people’s health remains inconclusive, they are generally considered to be safer for users than smoked tobacco. There is also very little evidence of harm to bystanders from exposure to e-cigarette vapour, where any health risks from passive vaping are likely to be low.
Should employers allow employees to vape at work?
Employers in the UK take a widely varying approach to the use of e-cigarettes in the workplace, where the question of whether vaping at work is permitted or prohibited is a matter of discretion for the employer. That said, many organisations treat the use of e-cigarettes much in the same way as smoking, allowing the use of these devices in any designated areas outside their premises, such as a shelter or other outside space. Equally, most employers will not provide breaks for vaping at work but, as with smoking tobacco cigarettes, will permit their staff to vape during their lunch or rest breaks.
In some cases, however, an employer may decide not to permit any onsite use of vaping devices, asking staff not to vape until they are off site. Many organisations will be keen to treat e-cigarettes in the same way as other age-restricted products, prohibiting their use, especially where they need to protect the risk of uptake by young people, for example, in a school, nursery or any other environment where the employee works with children or young people.
A similar rationale in prohibiting the onsite use of both tobacco and e-cigarettes can also apply to organisations in the heath and social care sector, where the promotion of the health and welfare of patients or service users is an important part of organisational branding.
Otherwise, when deciding whether or not to permit vaping at work, either inside or outside their premises, employers will need to weigh in the balance a number of factors, including how any decision will impact both their vaping and non-vaping staff. Even though the use of e-cigarettes at work is not against the law, this does not mean that you cannot ban employees from vaping. As with any form of conduct, within reasonable limits, you can set your own rules based on what you think is best for your business and the wider workforce.
Some of the factors that may need to be considered when deciding whether to permit or prohibit the use of electronic cigarettes at work include:
In favour of permitting vaping at work:
- Supporting the use of e-cigarettes as part of an employee’s plan to stop smoking. To help smokers to stop smoking and to remain smoke-free, a more enabling approach to vaping at work may be helpful to make it an easier choice than smoking. This can lead to significant health benefits for former tobacco smokers.
- Supporting the right of your employees to use their rest breaks to relax and wind down in whatever they see fit, within reason. This can lead to greater productivity, especially for former smokers who are using e-cigarettes to lessen their addiction to nicotine.
- Increasing productivity and reducing break times by allowing workers to vape at their workstations.
In favour of prohibiting vaping at work:
- Exposing bystanders to potential health risks, even if small, with the possibility that e-cigarettes produce exposure to toxic substances and the associated risk to others, especially vulnerable members of staff such as pregnant women or those with respiratory disorders.
- Causing a negative impact on air quality, with the associated risk of complaints from non-vaping members of staff, especially because the current generation of powerful e-cigarettes create more vapour which might be uncomfortable or concerning for others. The use of e-cigarettes can also cause an odour, which non-vaping staff may find offensive.
- Creating a negative image or first impression to clients, customers, service users or anyone else visiting your premises, especially as the realistic appearance of e-cigarette vapour can often be confused with conventional smoking.
Much, of course, will depend on the nature of your business, where factories or offices will have different considerations to schools or care homes. In many cases, the implementation of restrictions in the use of e-cigarettes at work, rather than a complete onsite ban, can often be used to find the right balance for both your vaping and non-vaping staff. By only allowing vaping at work in outside designated areas, you can respect the freedoms of those who wish to use e-cigarettes, whilst protecting the health and wellbeing of others.
Is vaping at work grounds for disciplinary action?
Vaping at work is not illegal. However, if you have a policy prohibiting vaping, or restrictions in place to limit the use of electronic cigarettes at work, for example, to outside use during rest breaks, any breach of these rules will potentially amount to misconduct. In some cases, it could even amount to gross misconduct for which an employee could be summarily dismissed.
Still, any disciplinary action taken against an employee for vaping at work must be fair. This means that the employee must be made aware of any prohibition or restriction on vaping, either through clear warnings or a written workplace policy. For example, if your organisation already has a smoking policy, but it doesn’t reference electronic cigarettes, employees may be confused about whether vaping at work is covered. As such, the language within that policy will need to be revised. Your workforce should also be informed of any changes to a workplace policy before they take effect, providing reasonable notice of these changes.
For organisations that have in place a clear workplace policy that prohibits or restricts the use of e-cigarettes at work, and the employee has breached the terms of that policy, there will be grounds for disciplinary action in much the same way as any other form of misconduct.
How should employers approach vaping at work?
As it is up to employers to decide whether vaping at work is permissible, it is also a matter of discretion as to when and where this is allowed. Still, for any prohibition or restriction on the use of e-cigarettes at work to be deemed fair, an employee must be made aware of the stance taken by your organisation and the circumstances in which any use is considered unacceptable. Ideally, therefore, you should implement a clear workplace policy, in writing, setting out the rules relating to both tobacco and e-cigarette smoking onsite, including the potential disciplinary consequences of any breach of these rules.
Some organisations may have separate smoking and vaping policies, whilst others may include an add-on about vaping or e-cigarettes to their existing smoking policy. Either way, it’s worth having clear rules in place and communicating these to your staff. It’s also useful to consult with any recognised union or elected employee representatives to get employees on board with any rules you decide to implement. As an ongoing measure, it can be useful to have signs or notices within the workplace which make it clear where vaping is allowed and where it is banned, including rules for both tobacco and e-cigarette users.
If you don’t decide to implement a complete ban on vaping at work, you may want to consider what restrictions, if any, you would like to put in place on the use of e-cigarettes, factoring in the effect on other members of staff and visitors. These restrictions could include ensuring that other staff and visitors are not exposed to the vapour. This could be achieved by designating a special area for vaping, ideally away from any conventional smoking area to support your vaping staff in their attempts to quit. You may also want to ensure that employees who do not use e-cigarettes are not unfairly disadvantaged, for example, where vaping employees are allowed additional breaks.
However, policies and practice on e-cigarette use in workplaces are evolving and need to continue to do so in the light of the emerging scientific evidence. It’s therefore important to keep any vaping policy under review, communicating any changes to your workforce.
If you would like to introduce a vaping policy in your workplace, one which clearly sets out a fair and reasonable basis upon which vaping is permitted or prohibited and, if permissible, the circumstances in which the use of e-cigarettes at work will be allowed, advice should be sought from an employment law specialist. There is no one-size-fits-all approach to addressing the issue of vaping at work, where organisations will need to develop their own policies to suit both the needs of their business and their workforce as a whole.
DavidsonMorris are UK employment law specialists. Our business employment lawyers and HR consultants work with employers to provide a holistic advisory and support service to employers that ensures compliance with workplace legal obligations while promoting a positive and supportive working culture. For advice on specific issues such as vaping at work, and developing policies and procedures on best practice in your organisation, contact us.
Vaping at work FAQs
Is it OK to vape at work?
Whether or not it is acceptable to vape at work will depend on any prohibition or restrictions put in place by your employer. Vaping in the workplace is not illegal, although many organisations will limit this to designated outside areas.
Can I be sacked for vaping at work?
If vaping at work is banned, or limited to designated areas, any unauthorised use of vaping devices, such as outside of normal rest breaks or in prohibited areas, could potentially result in disciplinary action, including dismissal.
Can you vape in the workplace UK?
In the UK, vaping in the workplace is a matter of discretion for the employer, although many organisations treat the use of e-cigarettes much in the same way as smoking, by only allowing this in designated outside areas.
Is it illegal to vape in a business?
It is not illegal, of itself, to vape on business premises. This is because e-cigarettes fall outside the legal definition of ‘smoking’ set out under the UK’s smoke-free legislation. However, some organisations may still ban vaping onsite.
Last updated: 25 June 2021