Smokers get protection from higher health insurance rates under 1991 state law
Filed by KOSU News in Feature.
March 19, 2013
Running down the list of protected classes in Oklahoma, you see race, color, religion, sex, and more of what you would expect…and then there’s this: smoker’s. Yep, under Oklahoma state law, employers can’t discriminate against smokers, or non-smokers. The story of how that tiny clause made it into law is one filled with lobbyists and an attitude of a different time…
The mid 80s were a time of George Michael.
A time of “Back to the Future”.
“A lot more people did smoke and chew and dip…”
“…There was smoking inside the Capitol and office buildings, by legislators, EAs and LAs.”
“…Probably half, if not more, of the committee members would pull out a cigarette or something and light up and blow smoke through the entire committee meeting.”
That’s Gary Bastin, Sean Voshkul and Ray Vaughn. All three were in the Legislature back in the late 80’s, early 90’s. Before the Legislature acted, Oklahoma City did – but in the opposite direction. In 1985, they fired a rookie firefighter who broke their new rule banning smoking on or off the job. And when Greg Grusendorf challenged it in court, the 10th Circuit Court of Appeals denied his claim.
That, combined with other moves around the country, got the Tobacco Institute’s attention. Memos show the trade group devised a comprehensive nationwide plan to add to the law. Back to Representative Vaughn…
“Oh, absolutely. They were very much on the defense, which put them on the offense actually in the state Legislature.”
The Institute, which closed up as part of the nationwide tobacco settlement, crafted the language and pitched it to state lawmakers around the country. Illinois was first, in 1987. Then came Oregon and Virginia in ‘89.
“There are a lot of legislation that’s influenced on people outside of the state of Oklahoma. Various groups that may have an interest in one thing or another and try to get legislators to introduce legislation that they believe in like they do. And so, it’s likely there was some involvement like that.”
Gary Bastin voted for the legislation back in 1991. That same year, 10 other states were enacting language doing the exact same thing. Bastin says he doesn’t remember the debate, but took an educated guess.
“People have the right to their own privacy. And what they do on their own time is their business.”
And the proposal drew in an unlikely coalition – organized labor. They saw this as an expansion of worker’s rights, according to Sean Voshkul, another yes vote in ‘91.
“I think when I look at just to the authors and the co-authors of the legislation, I think that there’s also probably strong support from labor organizations. And when you look at the law regarding collective bargaining agreements, there’s real protection for workers there.”
He’s talking about Democrat Don Ross, out of Tulsa. Now well into his 70’s, I tried to reach Ross, but he declined to talk about the legislation. And former Governor David Walters, who signed the bill into law on May 8th that year, said he really didn’t remember it. This despite Walters actually threatening to veto it just a day before it landed on his desk.
Why is this coming up now?
“The idea that employers ought to be able to account for the higher expenses that smoking employees bring.”
State Senator David Holt, Republican out of northwest Oklahoma City, is concerned what might happen when Obamacare goes into effect.
“Especially in an era that we’re entering where theoretically most, if not all employers, are going to have to offer health insurance to their employees.
“They ought to be able to account for the fact that some of those employees are making a choice, even if they’re only exercising that choice in their off time, employers are providing health care for 24/7, not just for the eight hours of the day that they’re there. They’re providing health care for that person, for that human.”
Under a literal interpretation of the law, it’s illegal for employers to treat smokers differently, including health insurance benefits – that would be discrimination. So Holt proposed repealing the 1991 law, removing smokers as a protected class.
“I’m sure they had arguments, I’m sure they had arguments that they were protecting personal liberties, My problem with that is that it’s at the expense of the employer’s personal liberties. And it’s injecting government into a relationship that government wasn’t previously involved in.”
As a state where most workers are at-will, and not in a union, firing or discrimination can come for a lot of reasons – tattoos, piercings, obesity are all fair game, as long as they’re not related to one of the protected classes like religion or ethnicity. But you if put a cigarette in your mouth.
“It’s a potential problem. I think that lawsuit is waiting out there,” Holt says.
Vicki Limas, law professor at the University of Tulsa, couldn’t find any cases related to the law, despite at least 29 states with it on the books. That means a lack of precedent, which could give a judge wide leeway to justify a decision.
And the state of Oklahoma may be breaking its own law…the largest insurer for employees, Health Choice, currently has a higher deductible for smokers than non-smokers.
Some senators in Louisiana tried to pull back on that state’s protection as well in 2012, they were unsuccessful, with opponents saying it would lead to widespread firings. As for Senator Holt’s bill, he didn’t try to advance it off the Senate floor after the Senate approved an amendment making all legal activity protected. He says it’s dead for now.