Will Indiana's 1991 "Smokers' Bill of Rights" law go up in flames?

Mills, a human resources director, also would like to ask job applicants if they use tobacco products, which have been linked to increased illness and productivity losses. But a 1991 law, known as the “Smokers’ Bill of Rights,” forbids him.

Mills thinks it’s time for that to change. Next year, he’ll be part of a lobbying effort spearheaded by the Indiana Chamber of Commerce to repeal the law.

“The state is interfering with employers’ rights by treating smokers as a protected class like gender or race,” Mills said. “We don’t understand why there should be special carve-out for smokers when it’s a choice they make to smoke.”

That’s the case that Rep. Wes Culver, R-Goshen, will try to make again when the General Assembly meets in January. A similar bill he carried last year died early in the session, killed by a committee chairman who is an avowed smoker.

Culver may seem like an unlikely ally in the fight to repeal the Smokers’ Bill of Rights. He’s a conservative Republican who voted against the 2012 statewide smoking ban that forced most workplaces, including bars and restaurants, to go smoke-free.

But Culver also is an employer — he owns the second-largest duck farm in Indiana — who’s seen health care costs go up.

“I’m for freedom of choice,” he said. “You can choose to smoke, but I should be able to choose not to hire you.”

That’s already happening in 21 states that don’t have special protection for smokers. Employers in those places — particularly hospitals — can refuse to hire smokers or require applicants to stop using tobacco as a condition of employment.

Chamber President Kevin Brinegar says it comes down to dollars.

“We think that repealing this legislation would give employers more of an ability to impact the overall incidence of smoking in Indiana and get a better handle on their own health care costs,” he said.

The pro-business chamber supported the statewide smoking ban two years ago. It argued that Indiana’s high smoking rate — fifth in the nation — costs billions in health care expenses.

Brinegar uses similar reasoning to advocate for nicotine-free hiring policies. Ball State University’s Global Health Institute says Indiana’s smoking habit costs employers nearly $2.6 billion in lost productivity and $2.2 billion in health care costs each year.

So far, that argument has fallen flat with a critical legislative gatekeeper, Rep. Doug Gutwein, R-Francesville. As chairman of the House Employment, Labor and Pensions Committee, he snuffed out Culver’s bill last year. Gutwein said committee members weren’t interested in taking up the bill, having seen a contentious fight over the statewide smoking ban just a year before.

“If an employer doesn’t want someone smoking on his property, that’s his right,” Gutwein said. “But this bill looked like being a nonsmoker was a condition for employment. I don’t think that’s right.”

Gutwein, like 1-in-5 Hoosiers, smokes. He said he already pays more than nonsmokers for his health insurance. Barred from smoking in the tobacco-free Statehouse, he goes outside to light up, where by law he must stand at least 8 feet from the exterior door.

“I’m the one standing in the snowdrift in winter, smoking,” he said. “I think that’s penalty enough.”

He said he’ll poll his committee members again this year to see if they want to hear the bill.

“You find me some people to support it, and I think we’ll hear it,” he said.

Indiana passed its smokers’ protection bill in 1991, as did 28 other states, not long after Alaska Airlines became one of the first employers to stop hiring smokers. The National Workrights Institute, a nonprofit associated with the American Civil Liberties Union, has opposed the practice, arguing that it infringes on individual rights.

The American Lung Association and American Cancer Society decline to hire smokers, but both organizations question the effectiveness of hiring practices that screen out tobacco users.

Brianna Herndon, of the American Cancer Society Cancer Action Network in Indiana, said a comprehensive approach to reducing tobacco use — including raising taxes and funding tobacco-cessation programs — works better.

“There is no evidence that employer hiring policies impact tobacco consumption or promote cessation,” Herndon said. “And there are concerns that these laws may impact insurance coverage of comprehensive cessation treatment.”