Burn ban

State Sen. David Holt (R-30) opened the legislative session by introducing Senate Bill 327, which looks to give business owners a break when it comes to a segment of their workforce that may be dragging down the bottom line with regard to health care costs.

He was surprised that smokers in Oklahoma enjoy a special protected status when it comes to hiring and firing.

“I didn’t even know, and I think most people didn’t, that smokers were a protected class in Oklahoma,” Holt says. “A protected class is pretty hard to come by and one that is reserved, I would say, for things that we as a community have decided are worth intervening in the private sector, free market. This is really a testament to good lobbying more than it is good public policy.”

That lobbying could be erased if the bill becomes law.

His SB 327 would repeal that protected status, which arose from Title 40, introduced into Oklahoma law in the 1990s.

Since employers have wide latitude in the firing of employees in Oklahoma, Holt argues smokers shouldn’t be any different.

“I think that’s unfortunate, particularly in the day and age where we’re about to have Obamacare put mandates on employers to provide health insurance. Now you have employers caught in this sandwich between Obamacare and this law,” says Holt, former chief of staff for Oklahoma City Mayor Mick Cornett. “They have to provide employees health insurance, but this law forbids them from considering whether this person smokes.”

According to the American Lung Association, tobacco use is the leading preventable cause of death in the United States. The economic costs in the U.S. due to tobacco total $193 billion and $2.8 billion in Oklahoma each year.

In Oklahoma, 6,300 die annually from tobacco-related illnesses. A 2010 study by the American Lung Association and Penn State University shows for every dollar a state spends on smoking-cessation treatments, it saves an average of $1.26.

“There’s no question smokers cost more per year in health care benefits,” Holt says. “That’s all off the table with the current law. No employer can consider whether a person smokes in hiring, compensation or benefits.”

Oklahoma City attorney David Slane says the argument is a unique one. Since Oklahoma is an at-will employment state, employers generally can terminate employment for whatever reason.

“I think the Legislature has the right to repeal that law, and I think it will withstand a challenge from smokers,” Slane says.

Slane, who chews tobacco, says he understands he pays more for life insurance and health insurance because of it. He doesn’t think the passing of the bill will affect Oklahoma’s workers adversely.

Holt says the tobacco industry’s own logic will work against it in this case. The industry generally lobbies for free choice.

“In
this case, it’s the opposite,” Holt says. “The government is forcing
employers to subsidize smoking, so the government is actually
interfering with the personal liberties of employers. I can kind of turn
that argument back on the tobacco lobby in this bill and use their
usual free-market argument against them because really what they’ve done
here is manipulate the statutes in their favor instead of opposite.”

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