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Removing the Haze from Vaping in the Workplace

Vaping – some people despise it, others enjoy it, while many do not understand it.  However, vaping is no longer a trend to be dismissed as something “the kids are doing these days.”  Vaping has infiltrated various areas of our everyday life, including air travel, hotels and other accommodations, restaurants, and various commercial establishments.  Public education institutions, particularly middle and high schools, have begun revising their tobacco rules to prohibit vaping on school grounds.  It naturally follows that employers should begin considering how to address vaping in light of evolving laws.

To understand the impact of vaping on your workplace, employers should start from the beginning: what is vaping?  Vaping is the act of inhaling and exhaling aerosol, or “vapor,” emitted by an e-cigarette, vape pen, or like device.  Breathing into the device activates a battery, which heats up the heating component.  In turn, the heating component converts the e-liquid into an aerosol, which the user inhales into the lungs and exhales into the air.  Conventionally, the e-liquid, or “e-juice,” is comprised of nicotine laced with propylene glycol or vegetable glycerin-based liquid, as well as some flavoring agent.  The most popular vaping product to date is the JUUL, with a high quantity of nicotine equivalent to an entire pack of cigarettes.

In the past two years, regulators have concentrated on curbing vaping among adolescents.   Florida lawmakers have been relatively silent about vaping in the workplace until recently.  On April 29, 2019, Governor Ron DeSantis signed SB 7012, which prohibits vaping in an enclosed indoor workplace and requires proprietors to implement policies and procedures regarding smoking and vaping in their facility.  Violators face a $25 fine, 50 hours of community service, or mandatory participation in an anti-tobacco “alternative to suspension” program.  The new law is effective beginning July 1 of the next fiscal year.

Still, the general fog around workplace vaping creates liability risks for employers uncertain how federal, state, and local laws and regulations will interact with this evolving technology.  Until employers receive more guidance from Florida lawmakers, employers should be mindful of potential liability, particularly in the following areas.

Vaping and the ADA

SB 7012 mirrors Florida’s Clean Indoor Air Act (2013), which prohibits smoking tobacco products in most public and private business, including the workplace.  Therefore, employers should expect compliance to mirror the requirements of the Clean Indoor Air Act.  To start, employers will need to update signage to specify indoor vaping limitations.  While the Clean Indoor Air Act does not mandate employers to accommodate employees that smoke any substance, employers should prepare to designate a smoking area that is impermeable by secondhand smoke.  By limiting vaping to designated smoking areas, employers minimize the risk of jeopardizing other employees’ medical conditions, which may be aggravated by the chemicals in vape smoke.  To this end, small facilities may consider clarifying that a designated smoking area covers tobacco and vape smoking.

The unknown question is how vaping regulations will interact with Florida’s other recently enacted regulation – Florida’s medical marijuana law, §381.986, Florida Statutes.  These worlds will inevitably collide because tetrahydrocannabinol (“THC”) is available in an e-liquid form for vaping products.  THC is a chemical agent creating an intoxicating, hallucinogenic effect when consumed.  Therefore, employees vaping THC e-liquids in the workplace may be in conflict with an employer’s Drug-Free Workplace policy and create workplace safety concerns.

Unlike marijuana cigarettes, bongs, and other marijuana paraphernalia, THC e-liquid will be difficult to detect if smoked via a vaping product.  Accordingly, employers should anticipate implementing policies and procedures to regulate the nature of the vaping substance.

Employees Under Age 21

On April 5, 2019, the Florida Senate introduced HB 7119, raising the minimum age from 18 to 21 for purchasing tobacco and vaping products.  The House bill exempts active duty military members from this regulation.  Six other states have implemented similar legislation, including California, New Jersey, and Massachusetts, and five more have passed laws to implement this change within two years.

Currently, the bill does not create a duty to report the use of vaping products by individuals under age 21.  However, employers should be aware that raising the minimum age might create a black market for the purchase of vaping product, which may spill into the workplace.  Reminiscent of the Prohibition Era, this scenario may create liability for employers who know or reasonably should have known that vaping products are being sold to employees under the minimum age on the employer’s facility.

Regulators are tackling vaping from various angles, many of which have significant implications for Florida employers.  As the ever-growing vaping industry continues to develop new products, employers should closely monitor the new legislation and case law for guidance on how to modify its policies and procedures in compliance with the law.

Iggy Garcia focuses his practice exclusively on representing employers with their labor and employment needs.  He has extensive experience in both federal and state courts representing employers.  He has defended both individual and collective actions under numerous state and federal employment laws, including Title VII, the ADEA, the ADA, FMLA, FLSA, Florida’s private whistle blower statute, and all manner of retaliation claims.  Mr. Garcia has also defended employment related torts such as defamation, negligent retention, negligent hiring, assault, battery and fraud, as well as all manner of breach of contract claims.  Mr. Garcia has handled numerous trials and administrative hearings.

Mr. Garcia has been featured as a speaker at numerous human resources and legal conferences throughout Florida.

Mr. Garcia also represents employers in front of numerous administrative agencies such as the EEOC and the Florida Commission On Human Relations.

Mr. Garcia regularly advises employers on numerous day to day matters related to their employees both domestically and internationally.  He emphasizes a practical approach to problem solving while decreasing an employer’s exposure to potential liabilities.  Mr. Garcia’s fluency in Spanish further allows him to address employee issues where language barriers would otherwise prevent such.

Karen Smeda focuses her practice on representing and counseling employers in labor and employment law matters. Ms. Smeda developed her interest in labor and employment law while working as residential staff for the West Campus Housing System, where she became familiar with the policies and procedures used by large employers, like Cornell University. She also worked as a 2L law clerk for the U.S. Department of Labor during the summer of 2017.

Ms. Smeda graduated from Cornell Law School in 2018. During law school, she served as the Senior Notes Editor for the Cornell International Law Journal, a Managing Editor for the LII Supreme Court Bulletin, and on the Moot Court Board. She also participated as a member of Martha Pollack’s Presidential Task Force, serving on a sub-committee informing Cornell University’s response to hate speech and harassment on campus. Ms. Smeda graduated from the University of Florida summa cum laude with a B.S. in Psychology and a B.A. in Criminology in 2012. She also graduated from Cornell University with an M.A. in Human Development in February 2016.

As the daughter of two Ecuadorian parents, Karen is a native Spanish speaker.


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