E-Cigarette and Medicinal Cannabis Use by Employees: Gray Area Matters

20 Jan

Every year brings new challenges for employers, yet few are probably prepared for never-before-seen issues, such as e-cigarettes and medicinal cannabis use at the workplace. Not surprisingly, employers in states that abide by the Drug Free Workplace Act of 1988, such as Colorado and Washington, may be especially hesitant when it comes to understanding the law’s full legal implications. It’s understandable that many HR policies in states where these laws are active may be a bit hazy, as the legal rhetoric outlining the rules are less than clear.

Guidance on E-Cigarettes at Work
Twenty-nine states have laws that strictly prohibit ”inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant” in the workplace. However, electronic cigarettes don’t actually burn anything, but rather contains a heating feature which releases nicotine vapor, according to Ohio lawyer Jon Hyman’s blog on Workforce’s website. This distinction will surely challenge workplace anti-smoking rules, as e-cigareets technically fall outside the lines of what a traditional cigarette consists of and how it is smoked. E-cigarettes are currently allowed in public places that restrict traditional smoking.

In the past, anti-smoking laws in the workplace were implemented to help reduce employees’ exposure to second-hand smoke and lower health-related risks of nicotine addiction among employees who smoke, wrote HR Hero. However, most employers still allowed workers to take intermittent breaks throughout the day to smoke in designated areas. Yet today,’s proponents of e-cigarettes in the workplace say allowing indoor use on the job boosts productivity because the need for outdoor breaks is eliminated. These advocates also say there is no evidence that proves people’s exposure to electronic smoking increases their health risks”, Hyman explained.

To cope with the changing landscape of workplace smoking laws, employers and HR departments must make sure to specifically prohibit e-cigarettes while on the job, as current laws technically allow their use.

Smoke on the Water Cooler: Clarity Needed on Medicinal Cannabis Users
Although employers must be sure to pay attention to their smoking policies in the workplace, there is even more work to be done to negotiate proper guidance on employees who legally use medicinal cannabis outside of work or after hours. Not only are the stratification of laws across America unequal in their level of legality (as in decriminalization, medicinal use, recreational use and total prohibition), the laws regarding their application for employees and employers alike are muddled.

“It’s throwing employers for a loop because many have policies in place where testing positive for THC, or Tetrahydrocannabinol (the active ingredient in pot) requires the employee to be terminated or to participate in some sort of treatment program even if it’s not necessary,” Alison Holcomb, an attorney for the American Civil Liberties Union, told CNBC when asked how employers with anti-drug policies should enforce rules against legal users of medicinal cannabis.

The only clear guidance issued so far comes to HR departments of businesses that receive federal grants and contracts as these businesses must adhere to the Drug-Free Workplace law, which would require the termination of employees who test positive for THC regardless of any medical uses. Similarly, the Department of Transportation also prohibits any use of illegal substances by its drivers.

Some states, such as Montana, New Jersey, Michigan, Hawaii, Colorado, Vermont and New Mexico all have specific employee protection clauses built into their legislation which only allow termination for on-the-job use or impairment.

Yet, not all states have issued statues that explicitly state what is allowable or legal for workers or HR departments, so it’s vital employers advise legal counsel before implementing any specific policies or enforcing workplace drug rules. Employers must also bear in mind that medicinal cannabis users have been approved by a doctor, usually for compassionate use due to terminal diseases or serious illnesses, and should compare medicinal use to workers taking a Vicodin for pain management once off work premises and after hours.

Now is the time for HR Departments to consult with their legal counsel, review and update the employee handbooks and stay in front of the changes in the legislation.

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