fired for vaping??

[kristin]

Employment at will is dictated at hire by the specific employer and an accepted practice in just about all states (in some form) except Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah & Wyoming, which have a covenant of good faith and fair dealing exemption - the most open policy. Other states have a few exemptions to the rule, but they wouldn't help unless discriminatory or state policy/law.

Employment At Will: What Does It Mean? - Free Legal Information - Nolo

So, it all depends on his employee handbook and/or contract/agreement.

Even if you are an at-will employee, you still cannot be fired for reasons that are illegal under state and federal law. In these situations, the government has decided to make an exception to the general rule of at-will employment.

For example, if your employer is subject to federal and state laws prohibiting job discrimination (as all but the smallest employers are), you cannot be fired because of certain characteristics, such as your race, religion, or gender. (For more information on discrimination, see Your Rights Against Discrimination and Harassment.) Similarly, you cannot be fired because you have complained about illegal activity, about discrimination or harassment, or about health and safety violations in the workplace (see Assert Your Safety Rights Without Fear of Retaliation). And you cannot be fired for exercising a variety of legal rights, including the right to take family and medical leave, to take leave to serve in the military, or to take time off work to vote or serve on a jury.

Unfortunately, vaping isn't a protected right.

On another point, I didn't see where people were trying to argue it was a drug vs. tobacco here other than my "tounge-in-cheek" comment about the FDA - which is technically true - the FDA HAS decided it's a drug delivery device. Doesn't mean that has been decided in a court of law yet or that he couldn't use that against his employer's argument that he was "smoking."

I do agree that he was probably a target already and the boss was looking for an excuse. If the boss really wanted to keep the OP he would have played down the incedent or maybe not even reported it to corporate.

Anyway, things to think about. Thank you to the OP for bringing it to our attention!! Sorry he had to find this out the hard way.

 

[Snarkyone]

You would think that the more productive part would be self evident with no more smoke breaks, and the missed days of work because your more susceptible to getting sick. Isn't that one of the old arguments the employers used to bring out against smokers as employees?

I also thought that perhaps he was a target before this and didn't know it and this was just a nice and easy excuse for him.

 

[Rhaevyn]

I am very sorry for what happened to you kookacola. My company is also VERY anti-tobacco, and you even have to pay a portion of your premium for health insurance if you're a tobacco user.

When I discovered e-cigs I went to my HR to ask about their policy. They said they had already had others asking about it and that Legal said no way. They know about them but it still "looks like you're smoking" so it's a no go. We still have to go off premises and find hiding places to "smoke." If you are seen, or visible anywhere adjacent to the building, they can walk you out. Arizona is an "at will" state and the policy at my employer is clearly stated. I would never risk it in the building knowing the consequences.

I hope everything works out for you. Losing income in today's economy is not a pleasant thought for any of us. Bright blessings to you. As stated, let us know how it goes.

 

[lkim65]

An attorney is good advice, also exactly what the 'no tobacco policy' actually is. You need to find out what this policy is, preferably in written form. Does no tobacco mean no nicotine? If so, that would include nic gum, patches etc. Are other employees using these devices? The PV is in an ambiguous category at the moment. It's technically not a tobacco product nor a drug...

 

[Lyndale]

Were you vaping inside the building? If so, I don't think there is much that can be done about it.

In Wisconsin you can not be discriminated against for using a legal product. Vaping is not illegal, I don't vape in the building, therefore they can't fire me for being the weirdo that's slowly turning smokers onto vaping.

 

[Ryle]

Doesn't matter if your state is "at will" or not. Since the FDA deemed these medical devises rather than Tobacco products you can go after them for discrimination in addition to wrongful termination and most likely some emotional distress claims as well. I would throw a fit and make a big stink about it. I'd compare it to being fired over using an asthma inhaler, allergy or diabetic injections, these are medical devises, would the company fire you for them? I woudn't roll over and take such treatment that's for sure.

 

[esdel]

I can't believe people are so STUPID. It LOOKS like a cig, so it must be bad! Total kneejerk reaction, nothing but ignorance and prejudice. This includes the FDA.

 

[Oogie]

I was kind of wondering how long it would take for something like this to happen. It's the blade's edge that was doomed to fall. I'm just so sorry it happened to you Kookacola.

Vaping is not a right. Vaping has not been "defined" yet. Is it legal or not and if it's legal where is it legal at? It's all going to come down to government stance. Looks to me like you get the prize for breaking the ground on this matter.

One thing I'd like to suggest, get a copy of the letter of dismissal. Tell them that you need it for unemployment. Get it with the letterhead, signature and all. Then take it and the employee handbook (hopefully you either have this or can get it) with the tobacco policy highlighted. Take both these with you and talk to the labor board, talk to an attorney and labor union if you were in one.

More than likely this company will get the idea quickly to give you hush money. This will never see a court room or hit the media airwaves if they (the company) can help it. I mean what company wants to be the next infamous case? IE Roe vs Wade, Brown vs School District - where legal presidence is made. (everyone knows these cases, not trying to say they are related)

see what I'm sayin?

 

[ZambucaLu]

I work for NY State. Some years ago, one person complained that people were allowed to smoke by the entrances and if something wasn't done about it, she would write the Attorney General. As a result, all smokers were banished to a designated smoking area across the parking lot.

Shortly before I started vaping, we were informed that due to complaints, employees were no longer allowed to use anything scented....perfume, hairspray, hand lotion, etc....because some employees complained of allergies...others said such 'odors' were offensive to them....whatever.

When I first started vaping, I was really excited about being able to do so at work so I would no longer have to trudge out to the smoker's area for breaks. I shared my enthusiasm with a couple of my smoking co-workers. Their first reaction was 'Don't let management catch you!' and then it dawned on me that they were right. If one (just one) person saw the vapor and 'called foul', the rule would come out quickly 'No vaping indoors' then any further incident would be a direct violation.

So.....I have been vaping for almost one year at work with no problem but I do so very discreetly and basically keep it to myself. I am most certain that 'outing' myself there would not work to my advantage. Right now, with no rule in place, I would probably just be warned but once a rule about it was established, well, let's put it this way...I would be in deep doodoo

I have always said it's the vapor that causes problems for us vapers. If people didn't see that, they wouldn't get so bent out of shape about second hand effects, etc. I know that seeing the vapor is an important component for me but until they either 1) produce a no vapor eliquid or 2) produce conclusive research that the exhaled vapor is completely and without a doubt harmless....vapers are going to be treated pretty much as smokers. And God forbid you get a boss who is an anti (anti smoking and vaping), you'll never stand a chance of convincing them otherwise.

So to the OP, sorry to hear that such a drastic measure was taken in your case but hopefully this will be a warning for others to be careful where you tread. Unfortunately, you may have much more to lose than just being banished to the smoker's area

Lu

 

[JustMeAgain]

I would hire the best lawyer I could find and I would sue them...... I would not settle for less than 10 million...... No warnings, bogus charges, no tobaco, no fire, no smoke, firing unjustly gets money.......

You forgot emotional duress.