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Although one should of course primarily concentrate on work at work, this question is asked surprisingly often: Can I vape e-cigarettes at work or smoke normal cigarettes? With normal cigarettes, the situation is well known and unambiguous: no, you are not allowed to smoke at work. This is how employers want to protect their non-smoking employees. That is why there are smoking rooms or smoking areas in virtually every office or retail store. In many companies, such as workshops or factories, smoking is prohibited anyway due to operational safety. But does all this also apply to vaping? Because many justifications for the smoking ban do not apply to e-cigarettes. For example, no tobacco is burned, but liquids are vaporized and these also do not necessarily contain nicotine.
Here, too, it is primarily one thing: a question of the individual case, a question of the house rules, such as when steaming on the train, and also a question of colleagues and superiors. Admittedly, harmful effects on health from e-cigarettes have not yet been proven, but many non-smokers, of whom there are certainly among your colleagues, fear that vaping will release unknown substances which they will then inhale. Although vaping pollutes the air in the room far less than “normal” smoking. However, since the consequences for health have not yet been finally clarified, many employers would like to prevent possible damage and are rather skeptical or even dismissive of e-cigarettes in the office.
Are e-cigarettes banned in the workplace?
As in so many areas, there is still no uniform legislation for electronic cigarettes in the workplace and therefore no legally binding ban. However, it is now clear that the general non-smoker protection laws or labor law regulations, such as the workplace ordinance, cannot simply be transferred to vaping. This was made particularly clear by a judgment by the Higher Administrative Court in Münster (Az.: 4 A 775/14). It was stated that vaping is not to be equated with the general term of smoking. Because smoking and the corresponding consequences and dangers relate exclusively to the combustion of tobacco and that is exactly what does not happen with e-cigarettes. However, this judgment applies primarily only to NRW and the particularly strict non-smoker protection there, which is why the announcement had a kind of signal effect. It has not yet been clarified whether other guidelines, such as the Workplace Protection Ordinance, apply to this topic.
Working time fraud with 20 e-cigarettes a day
One often hears the argument from opponents of e-cigarettes in the office that the contractually agreed working hours are not adhered to if someone vapes for around 2 hours a day. One can counter that many working models today are based on so-called trust-based working hours. That means: work as fast as you want, vape as much as you want, the main thing is that the job gets done. Only other employees should not have to do your own work for you, because you prefer to float in the cloud of steam. Ultimately, this means that, at least in the case of employment contracts based on the so-called model of trust-based working hours, vaping cannot be seen as a violation of the employment contract.
The employer can ban e-cigarettes – in most cases anyway
In general, due to the lack of legal provisions on e-cigarettes, there is currently no need for action to prohibit or allow vaping separately and specifically. Until the corresponding regulations and the Occupational Health and Safety Act are updated, it will probably remain a matter of discretion. However, a general ban would probably not be legal, since a reference to unproven health risks is not sufficient as a justification, some lawyers claim. But there are exceptions here too, for example when consumption could harm company interests, e.g. in sales rooms, at petrol stations and in restaurants. Another exception would be when excessive consumption, e.g. at a desk, impairs the quality of work performance. However, as long as there are no concrete laws or the health risk has been proven, an employer cannot simply ban vaping in the workplace. However, in order to maintain the positive working atmosphere and the quality of service, a binding internal agreement should be made in advance. This includes, for example – as far as possible – a physical separation of the vaping and non-vaping colleagues. The old-fashioned rule that (e)-cigarettes are off in the office and can only be used in a smoking area can also help. But here’s an important thing for bosses to note: you can’t just redesign the existing smoking room into an extended vape room. Because some vapers also use the alternative to quit smoking. In fact, vapers are non-smokers and should not be easily exposed to tobacco smoke. Until the legislature can be persuaded to introduce uniform regulations, the matter will remain complicated and, above all, requires communication, understanding and empathy from the people involved in the individual case.
