Why a KY lawmaker thinks employers should be able to fire workers for smoking
In a Kentucky workplace, an employee who smokes can’t be passed over for a job or fired because of their habit, but one lawmaker wants to change that.
Under state law, an employer cannot fail or refuse to hire, fire or otherwise discriminate against someone based on age, race, color, sex, religion, national origin, or disability. These groups are protected classes — a designation often granted to minority groups that have historically been treated unfairly.
In April of 1990, the General Assembly amended that law to also include smokers and non-smokers, “as long as the person complies with any workplace policy concerning smoking,” the law reads. Employers also cannot “require as a condition of employment” that any employee stop smoking or using tobacco products.
But Senate Bill 33, pushed by Sen. John Schickel, R-Union, seeks to remove that protected designation, meaning someone’s choice to smoke could get them fired, prevent them from getting a job, or a job offer could be conditional on their quitting smoking. It was filed during the 2019 regular session but wasn’t granted a hearing until last Friday before the Interim Joint Committee on the Judiciary. Committee members didn’t have any questions or comments.
“I say smokers are equal to everyone else, and that’s how it should be treated,” Schickel said after the meeting. “Equal rights, not special rights.”
That logic might not be air tight, said Ben Chandler, president of Foundation for a Healthy Kentucky.
Smoking rates are highest among low-income populations — a group that also tends to be less healthy, Chandler said. Since steady employment is linked to one’s ability to live healthily, it’s likely a law change would disproportionately “exacerbate” challenges faced by Kentucky’s poorer populations, he said.
Schickel’s bill, which he plans to re-file in the 2020 regular session, has no co-sponsors, but it does have proponents. Charlie Vance, the CEO of Erigo Employer Solutions in Fort Mitchell, said the current law “doesn’t make sense,” because “smoking is a choice, a behavior, whereas these other classifications are immutable.”
It “ties the hands of employers,” preventing them from “choosing who they want to do business with,” Vance said.
According to early 2019 data from the American Lung Association, the District of Columbia and 28 other states have similar smoker protection laws, including West Virginia, Tennessee and Indiana. Under Kentucky’s law, employers in the commonwealth do not have to contribute the same amount to employer-sponsored health care plans for smokers and non-smokers, and they can offer incentives for smokers to take part in smoking cessation programs.
A quarter of Kentucky’s nearly 4.5 million residents say they smoke — the second highest rate in the country, according to the Coalition for a Smoke-Free Tomorrow, a group of about 180 local stakeholders working to curb that rate. Kentucky still has the worst rate of cancer rates in the country, and 34 percent of those cases are smoking related. The number of new lung cancer cases diagnosed in Kentuckians each year is roughly twice as high as the national rate, data from the American Lung Association shows. The state’s annual health care costs for illnesses related to smoking hovers around $2 billion.
Labor and employment lawyer Rob Hudson of Florence told committee members that Schickel’s proposal would better position Kentucky to become healthier and would reinstate “free market principles.”
It would allow employers to reclaim a competitive advantage and incite employees “to move toward a smoke-free lifestyle, thus helping the commonwealth at large,” Hudson said.
But for many with nicotine addiction, Chandler said, “it’s not a choice” whether to keep smoking, and “penalizing” someone with job loss would only compound unhealthiness.
“If you want to cut down on smoking rates, there are better health measures, like putting more money into prevention, cessation and smoke-free laws,” Chandler said.
This story was originally published November 26, 2019 at 9:09 AM.
