Authors
This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
The consumption of e-cigarettes is rapidly increasing around the world. Opinion on these products is divided; some think that they will play a vital role in reducing the number of health complications caused by smoking, whilst others claim that they glamourise smoking and encourage non-smokers to take it up. However, what is beyond doubt is that this dramatic expansion has called into question how e-cigarettes fit within the legal framework.
In October 2013, the European Parliament in Strasbourg voted down the European Commission's proposal to introduce medical regulation for e-cigarettes, but proposed instead that the cross-border marketing of e-cigarettes be regulated, like tobacco products. Whilst we await new Europe-wide legislation, our UK, French, Spanish and German employment teams consider how the use of e-cigarettes could impact the employment relationship and whether employers are entitled to ban the use of e-cigarettes in the workplace.
UK
There is currently no UK legislation regulating the use of e-cigarettes as they do not fall foul of the smoking ban introduced by the Health Act 2006 from 1 July 2007. However, UK employers have a general duty to protect the health, safety and welfare of their workers and are expected to do whatever is reasonably practicable to achieve this. In addition, following the 1997 case of Waltons & Morse v Dorrington, an employee may successfully claim constructive and unfair dismissal on the basis of their employer's failure to protect its workers from the harmful effects of smoking.
The Advisory, Conciliation and Arbitration Service ("ACAS") has recently issued guidance on how employers should deal with e-cigarettes in the workplace, which can be found here.
Ultimately, whether or not smoking e-cigarettes in the workplace is permitted will be for the employer to decide and enforce through its internal policies. It is unlikely that one approach will be suitable for all UK employers.
France
France has not yet implemented legislation regulating the use of e-cigarettes. So can a French employer prohibit their use in the workplace?
Under the French Labour Code, an employer is responsible for the health of its employees and must take all necessary measures to ensure a healthy and safe working environment. According to researchers, passive smoking of e-cigarettes could be harmful to health because of the chemical substances they contain. As a result, the French National Research and Safety Institute (INRS) has recommended that employers use internal regulations as a tool to prevent employees from smoking e-cigarettes in the workplace (in communal areas and in open plan and individual offices).
As a result, it is advisable for French employers to prohibit use of e-cigarettes in the workplace as a precautionary measure.
Spain
In the absence of specific regulation, as long as e-cigarettes have not been proved to be a risk to health, they will not be covered by the protections set out in Spanish health and safety legislation. Employees could therefore try to argue that their use of e-cigarettes in the workplace is therapeutic.
However, given the potential risk to employees' health and wellbeing - some experts claim e-cigarettes contain detectable levels of known carcinogens and toxic chemicals - we consider that a ban by an employer on the use of e-cigarettes would amount to a reasonable restriction on employees' activities in the workplace.
The Spanish Ministry of Health has recently announced that it intends to introduce legislation prohibiting the use of e-cigarettes in educational centres, playground areas, hospitals, government buildings and public transport. If implemented, this will help employers to justify banning the use of e-cigarettes at work.
Germany
Although e-cigarettes have been available in Germany for several years, their legal treatment, particularly the application of legislation regulating consumption of "conventional" cigarettes and tobacco products, continues to be hotly debated.
In Germany, protection from the damaging effects of smoking is regulated at state level with each of the sixteen federal states implementing their own separate legislation, none of which currently addresses e-cigarettes expressly. The question of whether German employers can or must prohibit the use of e-cigarettes in the workplace will depend on the legislation and jurisdiction of each state.
Up until now the issue of e-cigarettes in the workplace has not been considered by the German labour courts. However, the fact that some states currently do not regulate the use of "conventional" cigarettes and tobacco products does not necessarily exonerate employers from their duty under labour law to protect health at work. This duty should be taken seriously, and all the more so because the potential long term health risks associated with the use of e-cigarettes have not yet been ascertained.
