The E-cigarette: Navigating Uncharted Territory

By Lonnie Giamela Partner, Fisher & Phillips, LLP | June 15, 2014

Co-authored by John Mavros, Attorney, Fisher & Phillips, LLP

Employers in hospitality have the difficult task of balancing public perception and guest expectations with their many legal obligations. Developments in technology often complicate those responsibilities. Online bookings have created new ADA obligations. Social networking has blurred the lines between an employee's workplace conduct and private conduct. Now, the e-cigarette has become a focal point of the public discussion raising important questions for hospitality employers.

What's The Big Deal?

The electronic cigarette, or e-cigarette, is similar to a traditional tobacco cigarette, except that the e-cigarette employs electricity to vaporize a packaged cocktail of water, nicotine, and assorted chemicals. Unlike a traditional cigarette, the e-cigarette does not emit the signature odor of tobacco smoke. In fact, unless infused with an additional flavor, the vapor can be virtually odorless.

Critics view the device with skepticism. Given the novel nature of the device, very little is known about any long-term effects of vaping and whether there are any negative side-effects from second-hand vaping. An e-cigarette emits vapor that strongly resembles cigarette smoke from afar and the similarities can be confusing to bystanders. Another potential drawback is whether e-cigarettes may lead young people to try other tobacco products, including conventional cigarettes, which are known to cause disease and lead to premature death.

Proponents laud the device for its liberating qualities. When introduced a decade ago, the e-cigarette was championed as the ultimate compromise between smokers' and non-smokers' rights. They point to the health benefits of e-cigarette use, including helping people quit smoking. Although the replaceable cartridges have varying dosages of nicotine, e-cigarettes do not have the chemicals that traditional cigarettes contain, including tar. It also has enabled smokers to consume nicotine discretely in places they cannot smoke. As a benefit to employers, proponents point out that employees are able to "vape" at their desk, which means fewer breaks and ostensibly a greater degree of productivity and efficiency on the job.

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