My daughter entered 9th Grade, and thus high school, last year. When asked how her first day at school went, the thing that made the deepest impression on her (other than the fact that the upper classmen didn’t line up and down the halls at the start of the day to render beatings upon the incoming freshmen) was how many people went in and out of the bathrooms for a quick vape before heading to class.
Smoking in the boys’ room, indeed.
Her experience is emblematic of a larger cultural phenomenon that’s gripping both our country and media headlines in equal measure. As of the date I’m writing this, 33 people in the U.S. have died as a consequence of vaping, with about 1500 more having been hospitalized. The initial impetus behind vaping (well, other than profit), was to create a safer alternative to smoking cigarettes that might also function as the first step in helping people quit smoking altogether.
Ironic, isn’t it? But, just as they say the road to Hell is paved with good intentions, so too is the road to vaping littered with health consequences no one anticipated. And many of those consequences could impact your employees or their family members, so let’s take a look at some of the things you should be thinking about if/when your employees are confronted with the problems of vaping.
Use of lawful products laws
A number of states, including Minnesota, Wisconsin, and Illinois, have laws that prevent most employers from regulating employees’ use of lawful products outside of the workplace by, say, refusing to hire smokers, or prohibiting employees from drinking alcohol after leaving work.
Unless and until it becomes illegal (see below), use of lawful products laws would apply to vaping, which means most employers can’t prohibit their employees from vaping. However, these laws permit employers to regulate the use of lawful products in the workplace however they see fit. For instance, it’s perfectly legal to prohibit employees from using alcohol while at work, or from coming into work hungover or under the influence.
As a result, you can, and should, decide how you want to control vaping in the workplace. Presumably, you don’t want your employees to be vaping while they’re actively working, but do you actually want to go so far as to treat vaping like alcohol and prohibit it at any time during the workday, including breaks and meal periods? Whatever you decide, you should be sure to update your smoking policy to cover whatever you want your vaping practices to be.
Clean Indoor Air Act / indoor vaping bans
Every state has a law that regulates indoor smoking in one fashion or another. A number of states and cities have recently amended their laws to include bans on vaping, and many others are well down the path of doing so (Minnesota has passed such a law, Wisconsin is considering a bipartisan bill to do so, and an Illinois Senate bill on the issue has stalled). If you have a facility in such a state, then you should update your handbook policies to reflect the indoor vaping prohibition.
Family Medical Leave Act and similar state leave laws
The FMLA doesn’t cover vaping directly, but it would cover any employee absences related to serious health conditions employees suffer due to vaping, along with any absences employees may take in connection with the vaping-related serious health conditions of the their spouses, parents, and children.
Americans with Disabilities Act
Employees who suffer vaping-related illnesses may need extended leaves of absence that go beyond the 12 weeks of FMLA, and upon returning to work, may have long-term or even permanent restrictions on their abilities to perform job tasks. If so, you will have to engage in an “interactive process” under the ADA to determine whether or not you will be able to accommodate the employee’s need for leave and/or restricted work.
Drug testing / legal marijuana
An increasing number of states are making some form of marijuana, whether recreational or medical, legal. Vaping can create unique challenges for the workplace, since many people use THC oils in their vaping pens, and THC, of course, is the psychoactive component of marijuana. To compound matters, apparently the distinct odor that accompanies smoking marijuana is much less pronounced with vaping, and dissipates much more quickly, which can make it easier for your employees to get high at work.
We have previously written about the workplace impacts of legal marijuana (just one of several articles can be found here), so I’ll confine my comments to two observations. First, just because are in a state where some form of marijuana may be legal does not mean employees have a right to ingest it at work, or be impaired by marijuana while working, which makes it just like alcohol in that regard. You can and should prohibit being under the influence of marijuana while working, whether via vaping or other methods.
Second, to the extent you may want to conduct drug testing, some states, such as Minnesota, put significant restrictions on your ability to do so. In Minnesota, you can’t drug test unless you have reasonable suspicion that someone is under the influence of drugs or alcohol at the time you send them for testing. The mere fact that someone may be vaping at work does not, by itself, constitute sufficient legal grounds in Minnesota to send the employee to be tested.
So what happens if an employee suffers some sort of significant medical episode as a result of vaping while at work? Will you now be facing a work comp claim?
In general, idiopathic injuries (i.e., injuries that would have occurred regardless of location, and which are neither triggered by nor exacerbated by the workplace) aren’t covered by work comp, and don’t have to be reported. A caveat to that statement would be a situation where the resulting harm from the idiopathic event was made worse by something unique to the workplace. For instance, if the employee were to be working on scaffolding or using some sort of dangerous power equipment at the time she experiences the medical episode, which, in turn, causes her to fall 30 feet to the ground or cut her arm off, then you might have a work comp situation.
In addition to the various workplace legal considerations that attend vaping, there are a number of practical things you should be mindful of, as well, starting with the fact that any employee or dependent who suffers a catastrophic vaping-related episode will impose significant costs on both the employee and your health plan.
Since sometimes the best defense is a good offense, there may be some proactive things you can do to raise awareness of the risks of vaping, while reducing the impact of, or likelihood of, vaping amongst your employees and their dependents. Plus, you may already have some of the groundwork in place to hit the ground running, since the options are basically extensions of the tools employers utilize to combat smoking.
Wellness program education
If knowledge is power, then a robust anti-vaping program that speaks to your workforce in ways that are meaningful to them can go a long way toward helping them make better decisions, while raising awareness of the resources at their disposal to help them kick the habit if they’ve already started.
Employer Assistance Programs, onsite clinics, or other cessation programs
EAPs are offered in connection with many health insurance plans. However, even though EAPs can be one of the most valuable resources offered to employees, many/most employees quickly forget all about them after open enrollment. Making sure your employees understand the resources available to them through information campaigns and frequent reminders is the first step in getting people help. You should also consider reaching out to whichever resources you offer to employees to partner with them on offering vaping cessation programs and finding the most effective way of connecting them with employees in need.
Anti-vaping premium incentives/penalties
As part of their wellness programs, many employers will offer health insurance premium discounts to nonsmokers, as well as to smokers who, for instance, complete a smoking cessation program. If you do so, you could consider expanding the program to encompass vaping as well.
Predictive analysis through data mining
Your own health plan data could be a valuable ally in the fight against vaping. With the proper type of analysis, you might be able to identify certain categories of employees who could be more susceptible to vaping-related episodes (such as those with asthma, emphysema, bronchitis, etc.), and even flush out early signs of potential vaping-related illness (increased respiratory visits, etc.). Once you know who your most at-risk populations are, it’s easier, you can target your information and cessation campaigns in ways that will likely make them more effective.
In many ways, vaping can seem like the issue du jour (swine flu or avian flu anyone?), but its effects are very real, and the various issues discussed in this article have application well beyond vaping. If you are a Hotline client and would like assistance in getting a handle on how to better manage the impacts of vaping on your workplace, shoot us an email at Hotline@AssociatedBRC.com, and we’d be glad to help.
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuin
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuing Ed program. He previously was a plaintiff’s attorney and brings that perspective into his advice to employers. James received his law degree from the University of Minnesota and his BA from Washington University in St. Louis.
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