by Charles S. Plumb
Effective November 1, 2013, two Oklahoma statutes governing how an employer addresses tobacco use in its workplace or by its employees will be revised.
Under the new 21 Okla. Stat. § 1247, lighted tobacco products in any form are prohibited in indoor workplaces. With a few exceptions, this prohibition includes work areas, employee lounges, restrooms, conference rooms, classrooms, cafeterias, and hallways. An Oklahoma employer may choose to provide its workforce with a smoking room so long as no work is performed in the room and it is fully enclosed and exhausted directly to the outside. Employers should post notices informing employees and guests that the workplace is tobacco-free.
While employers have the right to prevent employees from using tobacco products in the workplace, since 1991, state law has prohibited Oklahoma employers from discriminating against applicants or employees based on their use of tobacco during nonworking hours. This prohibition applies to discrimination against tobacco users regarding their compensation or any other terms or conditions of employment.
With that nondiscrimination law, a question arose: Can employers reward employees for participating in wellness programs, including smoking cessation programs? Some argued that rewarding employees for completing a smoking cessation program amounted to discrimination against employees who continued to smoke. The November 1 revision to 40 Okla. Stat. § 500 clears that question up by specifically allowing employers to offer wellness programs, including those that reward smoking cessation, so long as the programs are in conjunction with the health insurance coverage offered to the workforce.
Employers increasingly are considering implementing wellness programs, including smoking cessation classes. The November 1 revised statute makes it clear that doing so won’t run afoul of Oklahoma’s tobacco use nondiscrimination law.
Keep in mind that if your wellness program is part of a benefit plan governed by the Employee Retirement Income Security Act (ERISA), federal benefit laws may preempt our state statutes. In such cases, please consult with your qualified employee benefits/ERISA counsel.