Could “smoking” in the office be legal?

The idea of employees being allowed to smoke in the office seems preposterous and outdated, but for those who use electronic, or e-cigarettes, the law is less clear.

Blair Scotland, partner at Dundas Street Employment Lawyers, said that under the Smoke-free Environments Act 1990, smoking was defined as, “to smoke, hold, or otherwise have control over an ignited tobacco product, weed, or plant, and includes to smoke, hold, or otherwise have control over an ignited product or thing whose customary use is or includes the inhalation from it of the smoke produced from its combustion or the combustion of any part of it”.
 
“It’s got to be ignited tobacco, weed or plant and I don’t think these cigarettes are any of those. I don’t think there’s ignition that goes on with those e-cigarettes.

“Because it’s the Smoke-free Environments Act that blocks people from being able to smoke in places like the workplace and bars, if e-cigarettes fall outside that category and the application of that act, then it would be lawful for people to use those in the workplace.”

It is currently illegal to sell e-cigarettes that contain nicotine in New Zealand and non-nicotine devices cannot be sold to those under the age of 18.

When it comes to the workplace, Scotland said it could be a question of whether using e-cigarettes was an annoyance to others, or whether it would be less of a distraction than having an employee take regular cigarette breaks.

“If I was at my desk, puffing away on one, not annoying or disturbing anybody, not making strange noises as a result of it and not having to disappear every hour to have a proper cigarette, one would suggest, what’s the harm?

“But if it was being brought out in meetings, if it was an annoyance or a distraction from work, then an employer would be potentially justified in setting boundaries or limitations on when these things can be used.”

In the UK, e-cigarettes circumvent smoke-free legislation which prevents smoking in enclosed or substantially enclosed workplaces.

In a Link2 article, employment law specialist Amanda Okill said that research suggested the average smoker took four smoking breaks a day, each lasting 10 minutes, so it could be argued that allowing e-cigarettes at work could improve productivity.

Would you allow e-cigarettes in the workplace?