Oklahoma workplace tobacco laws revised

By Charlie 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 smoking rooms, so long as there is no work performed in those rooms and the smoking room 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 upon those using tobacco during non-working hours. This prohibition applies to discrimination against tobacco users regarding their compensation or any other terms or conditions of their employment. With this non-discrimination law, a question arose: “Can employers reward employees for participating in wellness programs, which include 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, 2013, revision to 40 Okla. Stat. § 500 clears this question up by specifically allowing employers to offer wellness programs, including those that reward smoking cessation, so long as the program is in conjunction with the health insurance coverage offered to the workforce.

Increasingly, employers are considering implementing wellness programs, including smoking cessation classes. The November 1, 2013, revised statute makes it clear that this will not run afoul of Oklahoma’s tobacco use non-discrimination statute.

Keep in mind if your wellness program is part of a benefit plan governed by ERISA, federal benefit laws may preempt our state statutes. In such cases, please consult with your qualified employee benefits/ERISA counsel.