Bill would let employers test jobseekers for tobacco use

The Indiana Chamber is pushing a bill to let employers screen prospective hires for tobacco use.

Posted on Jan. 4, 2014 at 12:00 a.m. | Updated on Jan. 4, 2014 at 10:07 a.m.

A Goshen lawmaker plans to introduce a bill in the upcoming General Assembly that would let employers test job applicants for tobacco use.

Republican State Rep. Wes Culver said the Indiana Chamber of Commerce, the state’s largest pro-business interest group, has asked him to carry the bill because it believes employers, facing health insurance premiums that are “skyrocketing” under Obamacare, deserve to know whether their workers smoke because it is so unhealthy.

Culver noted that he voted against the public smoking ban two years ago because he believed it infringed on the rights of business owners to set their own smoking policies, and he’s approaching this issue with that same mindset.

“My coming at this is more about freedom of choice,” Culver said. “Someone who owns a business has the right to choose whether they want to hire someone who is going to raise their health care costs.”

But critics worry about where discriminating against applicants for legal off-duty behavior could lead.

“From the perspective of labor, we’re generally skeptical of employers wanting to pile on all kinds of criteria before they decide to hire someone,” said Tony Flora, president of the North-Central AFL-CIO. “It’s a slippery slope. What’s going to be next? Discrimination against the long-term unemployed? Alcohol use? Body-mass index because we don’t want people who are tending to be obese?”

Employers in Indiana and elsewhere already offer workers cash incentives not to smoke, through lower health insurance premiums. This practice has been legal in Indiana since 2006. But Indiana is one of 29 states that prohibit employers from discriminating against prospective hires because they use tobacco. Repealing the so-called “smokers bill of rights,” enacted in 1991, is one of the Indiana Chamber’s top legislative priorities in the session that begins Monday, said Mike Ripley, the group’s vice president of health care policy and workplace safety.

“We don’t feel you should be in a protected class of individuals just because you smoke,” Ripley said.

Ripley said the bill, if passed, would not require employers to test for tobacco, but it would allow them to do so. Employers might still choose to hire smokers while encouraging them to quit.

Last year IU Health lobbied the General Assembly for such a bill that would have been limited to health care employers, but it failed to pass. Hospital systems in many other states already screen job applicants for tobacco use.

Ripley said the bill furthers long-term goals the chamber has identified to reduce Indiana’s relatively high smoking rate. About 25 percent of Hoosiers smoke, the third-highest rate in the nation, compared to 21 percent nationally, according to Gallup polls.

Flora said reducing smoking rates is important and employers should play an active role in that effort, but they should work with existing employees.

“Where do the smokers go?” Flora said. “You’re going to be always unemployed because you’re a tobacco user? That’s pretty extreme.”

Flora said employers “cherry picking” the healthiest people to hire is not “constructive.”

Culver said if the bill becomes law, he will avoid hiring smokers for some positions, particularly ones that deal more directly with clients and the public, in the home construction, property management, home security, and bed and breakfast businesses he operates. He said he wouldn’t test applicants for tobacco but would ask them if they use it.

“I have had clients complain about smokers, the smell,” Culver said.

He acknowledged Flora’s “slippery slope” concerns but said “there might be other questions we ask in the future. Are you a liability to employ because of your personal life choices?”

Culver said he does not believe employers should be able to screen for body mass index because there is evidence that genetics can factor into obesity.

Ripley said Indiana would be the first of the 29 states to repeal their “smokers bill of rights.” He realizes the bill will be controversial and he does not expect it to pass this session.

“I expect this to be a long-term battle,” said Ripley, who served in the General Assembly from 1996 through 2008. “This is a marathon. It’s like the smoking ban in the workplace. It took six or seven years. We have to keep presenting the issue, people have to keep mulling it and talking about it.”

But like the smoking ban, there could be bipartisan support. Culver said he has heard from several Democrats, whom he declined to identify, who have indicated they might sign on as sponsors because they think it will help reduce smoking in the state.


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