Gavel to Gavel: Up in smoke

The first time I watched the older reruns of The Tonight Show Starring Johnny Carson, I was amazed. It wasn’t Carson’s famous turns as Carnac The Magnificent that caught my eye. Instead, it was the curling tendrils of smoke shrouding the host and his guests as they puffed away at cigarettes on live television.

The reason I was so shocked is that this kind of free-wheeling cheap tobacco use is unheard of today. From airplanes to restaurants to bars to even movies and television, smoking is not nearly as ubiquitous as it once was. The same holds true for the workplace, where employers are creating smoke-free environments, both inside their walls and on the premises surrounding them.

It is easy to get caught up in the anti-smoking movement and assume that smokers in the workplace have no protection. However, that assumption would be a mistake, especially in Oklahoma.

Interestingly, in Oklahoma those who choose to use tobacco products do have certain rights conferred upon them by the Oklahoma Legislature. Specifically, 40 O.S. §500 states that “It shall be unlawful for an employer to: (1) discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions, or privileges of employment because the individual is a nonsmoker or smokes or uses tobacco products during non-working hours; or (2) require as a condition of employment that any employee or applicant for employment abstain from smoking or using tobacco products during nonworking hours.”

This statutory language means that while Oklahoma employers can establish anti-smoking rules, they cannot hold it against employees who choose to use tobacco during nonwork hours or on noncompany property. So, refusing to hire an applicant because he or she smokes is prohibited. Likewise, taking an adverse action against an existing employee because it is learned he or she smokes is prohibited.

Where it really gets tricky is with anti-smoking campaigns by employers that encourage and incentivize employees to quit smoking. There is an argument to be made that such programs have an adverse impact on those who choose to keep smoking, in violation of 40 O.S. §500. As a practical matter, it may be difficult to launch a lawsuit against an employer based on a perceived bias against smokers, as this is bound to not be a popular claim. Then again, you could always draw a jury of smokers!

Bottom line, the anti-smoking movement is here to stay and efforts by Oklahoma employers to void their workplaces of tobacco use are largely supported. However, you would do well to remember that smoking employees in Oklahoma are not without any rights, even if we won’t be seeing David Letterman or Conan O’Brien lighting a camel cigarettes on set anytime soon.


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