E-cigarettes became available in the US in 2006, and their popularity has grown exponentially. There are tens of thousands of new e-cigarette users in the US every week. The Food and Drug Administration (FDA) is only now focusing on the impact that e-cigarettes may have on users. As a result, employers have little or no guidance on how to address the use of this new product within their workplaces. Practical Law reached out to Michael Abcarian of Fisher & Phillips LLP to discuss the latest developments about e-cigarettes and spotlight issues employers need to understand.

Michael Abcarian is a Regional Managing Partner in the firm's Dallas, Texas office. He represents and counsels Fortune 500 corporations, units of local government and local business interests in a variety of labor and employment matters.

E-cigarettes are battery-powered cartridges that rely on a heating element to vaporize a liquid cocktail that usually includes nicotine. The smoke-like vapor emitted by e-cigarettes is typically odorless, but with the proliferation of additional chemical constituents (for example, flavorings), this may change. The use of e-cigarettes is commonly referred to as "vaping."

Many employees view e-cigarettes like traditional tobacco-leaf cigarettes and do not want them in the workplace. A 2014 American Electronic Cigarette Etiquette Survey conducted by Harris Interactive and Mistic Electronic Cigarettes reported that 75% of respondents disapproved of e-cigarettes in the workplace. If these findings are indicative of nationwide sentiments, many employers have significant non-tobacco-using populations that disapprove of e-cigarette use at work.

Additionally, there remain significant concerns about possible side effects of second-hand vapor emissions from e-cigarettes. Currently, there are little to no research findings about the long-term health effects of e-cigarette use, either for the user or from second-hand exposure. It is certainly possible that e-cigarette vapors contain carcinogens. Another concern is that e-cigarettes present an irresistible temptation for former traditional tobacco smokers.

E-cigarettes could cause health insurance premiums to rise. At present, e-cigarettes are not perceived by the health care industry as tobacco products. However, the FDA is already taking action to regulate e-cigarettes and may ultimately classify e-cigarettes as tobacco products. If so, employers may face increased insurance costs. The Patient Protection and Affordable Care Act allows insurers to charge increased premiums for smokers.

Yes, several employers have outright banned e-cigarettes in the workplace, and this represents a trend that is likely to accelerate. For example, Texas-based Baylor Scott & White HealthCare System has a nicotine-free hiring policy that treats e-cigarette smokers the same as nicotine users. The following employers have also banned the use of e-cigarettes to support their tobacco-free workplace policies:

In addition to private entities, some governmental employers have also prohibited e-cigarettes. This includes the US Air Force, which has accepted the US Surgeon General's view that e-cigarettes are tobacco products.

Yes, many employers are considering approaches other than the outright ban of e-cigarettes. For example, companies such as Exxon Mobile have allowed e-cigarette use in designated smoking areas. VICE News allows e-cigarettes in offices for the time being, but says their policy may change if there are complaints from other employees. The Fort Worth Star-Telegram, a local newspaper, found that for some employers, a "don't-ask-don't-tell" arrangement may be viable where discrete employee vaping does not draw undue attention. There are also many employers that currently allow employees and others to use e-cigarettes freely.

One of the most prominent areas of e-cigarette regulation focuses on banning sale to minors. There are currently 34 states that have enacted related legislation. In addition, there are currently three states (New Jersey, Utah and North Dakota) along with approximately 150 municipalities that have banned e-cigarettes in public areas, including indoor workplaces. States that currently ban traditional cigarette smoking in public areas are likely to impose e-cigarette bans, especially if the FDA finds that e-cigarettes should be treated similarly to tobacco products.

In 29 states, smokers are considered a protected class. E-cigarette smokers would likely be included in this category. That may ultimately mean that in some states, an employer could not refuse to hire or discriminate against an individual on the basis of being an e-cigarette smoker. Future regulations and interpretations of the law will define this emerging legal issue.

For more information about state laws protecting smokers from discrimination, see State Q&A Tool: Anti-Discrimination Laws: Question 1.

Employers should thoroughly review the applicable local and state laws. Some employers may not need to worry about creating their own policy if local government has already instituted bans or other limitations on the use of e-cigarettes in public places. In the absence of government regulation, employers interested in imposing e-cigarette limitations need to clearly define their objective in restricting or banning their use. For example, is the objective to prohibit the use of tobacco altogether or to ban nicotine or forbid noxious fumes in the workplace (e-cigarettes are largely odorless, but this may change)? Or do they want to ban anything that creates the illusion of traditional cigarette smoking? By answering these questions before crafting a policy, employers may avoid challenges that could lead to costly court battles.

Not yet, but it will very soon. The FDA has proposed to extend the agency's tobacco product authorities and perspective to e-cigarettes. The FDA is seeking to prohibit the sale of e-cigarettes to minors as covered tobacco products and require that health warnings be displayed on e-cigarette packaging. The FDA's proposed rule is open for public comment through July 9, 2014. Following the comment period, the FDA will decide on a final approach to regulating e-cigarettes.

For more information about the FDA's proposed rule on e-cigarettes, see the Federal Register's website.