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Ohio’s smoke-free workplace law defines “smoking” as including “any lighted cigarette … for burning tobacco or any other plant.” In effect since December 2006, Ohio’s Smoke-Free Workplace Act has been credited with significantly reducing society’s exposure to second-hand smoke and related tobacco illnesses and disease including lung cancer, heart disease, and respiratory illness which its exposure caused.
Recently, more and more employers are facing the challenge of employees wanting to smoke what are known as smokeless cigarettes. Most smokeless cigarettes are currently manufactured in China and distributed in the United States over various internet websites. Manufacturers of most smokeless cigarettes tout smokeless cigarettes as not producing second-hand smoke, no tar, no tobacco, no carbon monoxide, no odor, and no pollution. So, what are smokeless cigarettes? Smokeless cigarettes are similar in appearance to regular cigarettes and are a nicotine delivery device. However, they contain a battery that turns the device red at the end. Smoke does come out, but it is 99.9% water vapor. There is no smell, and the smoke disappears virtually immediately. It is important to note that the FDA has not approved smokeless cigarettes and since most, if not all, are manufactured in China, there is no way to know exactly what they contain.
Due to the fact that it is not lit and does not involve the burning of any tobacco or any other plant, it does not fall within the purview of Ohio’s Smoke-Free Workplace Act.
So, what is an employer to do when employees demand the ability to smoke smokeless cigarettes? Employers should strongly consider revising their handbooks to prohibit their use. If not, employers will find themselves with employees wanting to once again take smoke breaks. Employer permitted use of smokeless cigarettes may lead to theft and/or stealing, as the start-up kit alone is $30.00, not to mention the fact that some employees, no doubt, will try and smoke real cigarettes and pass them off as smokeless. In other words, smokeless cigarettes will just be another distraction for an employer and its employees.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.