The legal situation
The electronic cigarette or e-cigarette is a battery operated, nicotine vapour inhaler device. A typical electronic cigarette contains a nicotine cartridge, a vaporiser with electronic circuitry, sensors and a battery.
On inhalation the cartridge is heated and a fine mist is produced. This mist is absorbed into the lungs, although some odourless vapour is released into the air as the smoker exhales.
Many individuals use these devices as an alternative to smoking when trying to stop smoking. There is anecdotal evidence that they can help.
Legislation introduced in the UK has banned the use of tobacco-based cigarettes (and similar products) in public places and workplaces. Although the e-cigarette is designed to resemble a traditional cigarette it does not contain tobacco and is therefore outside the remit of the legislation.
As such the employee and employer would not be in breach of any legislation relating to prohibitions and the employee may continue to use the device within the rest room.
It will be for the employer to determine if it wishes this to be the case, but there may be some opposition from other users of the rest room, particularly in relation to the potential health effects if a mist is produced that is then present in the ambient environment.
Currently, there is no evidence to suggest that the mist is likely to adversely affect the wider population.
ASH, the Action of Smoking and Health organisation, states that “e-cigarettes, which deliver nicotine without the harmful toxins found in tobacco smoke, are likely to be a safer alternative to smoking. In addition, e-cigarettes reduce second-hand smoke exposure since they do not produce smoke”.
However, the organisation does also issue an advisory note in that the products are unregulated and that there are some concerns about their safety since few manufacturers disclose the ingredients of their products.
It may be advisable to consult with staff on this matter so as to get the viewpoint of all employees and to allow a collective policy decision to be made that takes into account the opinions and wishes of the majority of employees.
Union speaks out against e-cigarettes
The Trades Union Congress (TUC) has described e-cigarettes as “a problem at work,” arguing that they have no place in work settings and are potentially hazardous.
The union says it has received recent enquiries from health and safety representatives asking for guidance on the devices and that, while the electronic nicotine delivery systems are not banned, they should be subject to the same controls at work as real cigarettes.
Noting that US authorities have discouraged their use, Hugh Robertson, Senior Policy Officer for Health and Safety at the TUC said, “Certainly e-cigarettes do contain a number of carcinogens and toxins, but these are likely to be at much lower levels than with cigarettes made with tobacco.”
He added, “In answer to the specific question about their legality, e-cigarettes are not covered by the ban on smoking in enclosed workplaces and public places, but an employer does have control over whether their employees can smoke them while at work.”
Furthermore, he argued, given that the long-term effects of the fumes are unknown, employers should not be allowing a potentially harmful substance to be used in the workplace under the Control of Substances Hazardous to Health (COSHH) regime.
It seems employers are already taking this stance. Last year, for example, NHS Fife and Blackburn College made e-cigarettes subject to the same controls under their smoking policies as normal cigarettes.
The TUC is advising its safety representatives to try to ensure that employers do not allow the use of e-cigarettes in enclosed places or anywhere that smoking tobacco is prohibited. However, as part of health promotion campaigns, the union suggests representatives might want to work with employers to encourage smokers to switch to e-cigarettes and use them instead of tobacco cigarettes, but only in places not covered by the smoking ban.