The Patient Protection and Affordable Care Act (“ACA”) permits employers to charge higher premiums to tobacco users for medical coverage (except where limited by state law). This should be done in conjunction with a wellness plan that offers tobacco cessation counseling, and employers generally will determine tobacco use by requiring employees to complete a questionnaire. Currently, tobacco use is defined as using tobacco products an average of four or more times per week within the past six months, excluding religious or ceremonial uses.
The popularity of electronic cigarettes (or “e-cigarettes”) creates a dilemma for employers who feature a tobacco surcharge in their benefit plan. Many electronic cigarette or vaping products do not include leaf tobacco at all, although many do include nicotine. In mid-2016, the Food and Drug Administration began to regulate electronic cigarette products. This led many employers to begin including such products under the definition of “tobacco use.” However, it is still unclear whether the provisions of the ACA discussing tobacco use are intended to cover vaping and electronic cigarettes.
Therefore, if employers want to include vaping in the definition of tobacco use, they should explicitly do so in the affidavit or other form that employees complete to verify whether or not the employee uses tobacco. Employers should also consider how they wish to treat the use of electronic cigarettes that do not feature any nicotine – categorizing the use of these products as “tobacco use” may or may not be permitted; but the employer can protect itself by adopting a clear, consistent policy. Further federal regulatory guidance on this issue is needed, and employers should closely follow any developments in this area as the regulatory environment surrounding electronic cigarette and vaping devices changes over the next few years.
Employers may also wish to update any workplace or employee tobacco use policies to include electronic cigarette products. Tackling this issue prospectively will help avoid employee complaints of inconsistent treatment. This policy should be consistent with how the employer treats tobacco use for benefit purposes, and it should be advertised to all employees and other individuals (volunteers, contractors, clients, students, etc.) who may be affected by or subject to the policy.
This newsletter gives a basic overview of recent regulation as in effect on the date of the newsletter. Please be aware that the determination of the requirements and the application of these rules to each employer may differ due to a number of variables. Nothing in this newsletter should be construed as legal advice.