October 25, 2019

E-Cigarettes: The Rights of Employers in Ohio

by Danielle Crane, Kegler Brown Hill + Ritter

Electronic cigarettes are everywhere, it seems. But while the industry is booming, regulation of these new devices is lagging, leaving employers to decide how they will treat vaping products.

Although e-cigarettes are routinely lumped in with traditional tobacco products for purposes of policy making, the two are, in fact, very different. Traditional cigarettes deliver nicotine by burning tobacco, which generates the cancer-causing chemicals we have come to associate with nicotine. Vape pens, on the other hand, work by heating a solution of nicotine and other chemicals into a vapor which is then inhaled.

Despite vaping being labeled as a safe alternative to traditional tobacco products by the World Health Organization, 18 recent deaths highlight the fact that much is still unknown about e-cigarettes. This uncertainty has left many employers at a crossroads and has resulted in a wide range of policies.

In Ohio, the Smoke Free Workplace Act of 2006 prohibits smoking in and around work areas; however, the Act’s definition of “smoking” is currently limited to tobacco products only. Thus, employers are free to permit, prohibit or limit e-cigarettes as they see fit. The Ohio State University, for example, prohibits any use of e-cigarettes by its employees, students and the public. McDonalds, on the other hand, allows e-cigarettes without limitation. ExxonMobil takes a different approach by categorizing e-cigs the same as traditional cigarettes and allowing employees to smoke or vape in designated spaces.

For now, whether or not to accommodate e-cigarettes and the form that takes is left entirely to employers. Only a handful of states have updated their smoking laws to include vaping, but with recent concerns over the hidden dangers and appeal to young people, don’t be surprised if more states follow suit and prohibit vaping in and around the workplace.

Employers are free to permit, prohibit or limit e-cigarettes as they see fit.