Vaping in the Workplace: What Are the Laws?

The Centers for Disease Control and Prevention (CDC) defines “vaping” as the use of an electronic nicotine delivery system (ENDS) such as an e-cigarette, e-cigar, e-pipe or e-hookah. These devices “deliver aerosolized nicotine, flavorings, and/or other chemicals into the lungs of users.”

The use of ENDSs is increasing and becoming a widespread issue for employers. One study found that “[w]orkplace vaping and vaping exposure is common in U.S. workplaces. Employees, particularly non-users, hold generally negative perceptions of workplace vaping.” The study concludes that comprehensive policies are needed to prevent workplace vaping and protect employees.

Federal law does not ban or regulate smoking or vaping in private workplaces. However, concerns about the impact of chemicals that can be emitted during ENDS use have prompted many states and localities to outlaw vaping in the workplace.

State and local vaping laws

According to the CDC, as of March 2021, the following 15 states have banned smoking and e-cigarette use in indoor areas of restaurants, bars and private worksites:

1. California
2. Colorado
3. Delaware
4. Hawaii
5. Massachusetts
6. Minnesota
7. New Jersey
8. New Mexico
9. New York
10. North Dakota
11. Oregon
12. Rhode Island
13. South Dakota
14. Utah
15. Vermont

Other states prohibit smoking and e-cigarette use in certain establishments, such as schools, colleges, correctional facilities, sports arenas, hospitals, playgrounds and child care facilities.

Some states leave it up to the local government to enact workplace vaping laws. Currently, hundreds of cities and counties have passed laws restricting the use of e-cigarettes in smoke-free venues.

Exceptions to the laws

It’s important to carefully examine state and local vaping laws, as there may be exemptions or carve-outs.

For example:

• In 2018, the state of Alaska enacted legislation banning smoking and e-cigarette use in indoor areas of restaurants, bars and private work sites. However, the law also permits municipalities to opt out by way of voter referendum. The CDC states that because of this exemption, Alaska’s legislation is not regarded as “a comprehensive smoke-free indoor air policy that includes e-cigarettes.”
• Although many municipalities in Illinois ban e-cigarette use in non-hospitality workplaces, restaurants, bars and gambling facilities, a few municipalities in the state exempt bars from this provision.
• Some states and localities permit e-cigarette use on a partial basis — such as only in retail e-cigarette stores, theatrical productions or anywhere that tobacco smoking is allowed by state law.

No-vaping laws

If your state or local government has not adopted any regulations on vaping in the workplace, you can implement your own policy on the issue. Health protection agencies and workplace experts recommend that employers follow the smoking and vaping guidelines developed by the National Institute for Occupational Safety and Health (NIOSH).

According to NIOSH, at a minimum, employers should create and maintain a smoke-free workplace to prevent secondhand exposure to tobacco smoke and airborne emissions from electronic nicotine delivery systems.