Research & Commentary: Wyoming Should Not Allow Employers to Discriminate Based on Tobacco Use

Published February 21, 2018

Lawmakers in Wyoming are considering repealing a state law that prohibits employers from discriminating against employees who use tobacco products outside of the workplace. Wyoming is one of 29 states that have laws in place prohibiting employers from discriminating against smokers “unless being a smoker goes against a specific job qualification.” Wyoming’s current law also protects nonsmokers by prohibiting an employer from discriminating against workers who choose not to use tobacco products.

The American Civil Liberties Union (ACLU) “believes that what a person does during non-working hours away from the workplace should not be the basis for discrimination.” The ACLU cites a report by the Bureau of National Affairs that found “95 percent of companies that banned smoking [in 1987] reported no financial savings.” The ACLU also argues that policies such as denying capable persons from working because they consume tobacco products at home or “denying them the opportunity to earn a living for themselves and their families … will not solve our nation’s health care crisis; it will only destroy the lives of working Americans.”

Even more troubling, the Wyoming proposal defines tobacco products as any substance “made or derived from tobacco that contains nicotine,” including tobacco harm reduction (THR) products, such as smokeless tobacco, electronic cigarettes, and vaping devices. This undermines the public health gains these products have created and ignores their role as combustible cigarette cessation tools.

If approved, the proposed policy would also allow employers to fire employees who use smokeless tobacco, even though research shows these products are significantly less dangerous than combustible cigarettes.

Dr. Brad Rodu, senior fellow at The Heartland Institute, has conducted more than 20 years of research on tobacco harm reduction and extensively analyzed the health effects of smokeless tobacco. Rodu claims smokeless tobacco is “at least 98 percent safer than smoking.” Rodu also notes, “Swedish men have the highest rate of smokeless tobacco use in Europe, which is directly linked to the lowest smoking rate on the continent. Swedish men also have the lowest rates of lung cancer and other smoking-related diseases in Europe.”

E-cigarettes and vaping devices are also significantly less harmful than combustible tobacco products, and they have been proven to help thousands of smokers quit using cigarettes. In 2018, the National Academies of Sciences, Engineering, and Medicine found consumers who switched to e-cigarettes experienced “reduced short-term adverse health outcomes in several organs.”

This finding is in line with previous research conducted by public health organizations. In 2017, NHS Health Scotland issued a statement with other organizations declaring e-cigarette use “less harmful than smoking.” In 2015, Public Health England said e-cigarette use is roughly “95% safer than smoking.”

It has also been suggested the use of e-cigarettes could save states money, as examined in a State Budget Solutions study. The study estimated savings to Medicaid could have amounted to $48 billion in 2012 if e-cigarettes had been adopted by all Medicaid recipients currently consuming tobacco products.

Wyoming lawmakers should not alter the law protecting employees from being discriminated against based solely on whether he or she uses tobacco outside of the workplace. This is a violation of individual privacy, and the inclusion of THR products negates the public health consequences lawmakers are seeking with such legislation. Instead of limiting freedom, legislators in the Cowboy State should promote products that reduce the health risks of combustible tobacco products.


You can find more information about tobacco regulation and tobacco harm reduction here.  


Tobacco Harm Reduction: The Case for Smokeless Tobacco
Brad Rodu, a research fellow at The Heartland Institute, weighs the risks of smoking and smokeless tobacco in this presentation. Rodu claims there are significantly fewer health risks associated with smokeless tobacco, such as snuff and snus, than combustible tobacco products.

Vaping, E-Cigarettes, and Public Policy Toward Alternatives to Smoking
For decades, lawmakers and regulators have used taxes, bans, and burdensome regulations as part of their attempt to reduce the negative health effects of smoking. Recently, some have sought to extend those policies to electronic cigarettes. This booklet from The Heartland Institute urges policymakers to re-think that tax-and-regulate strategy. Policymakers should be mindful of the extensive research that supports tobacco harm reduction and understand bans, excessive regulations, and high taxes on e-cigarettes often encourage smokers to continue using more-harmful traditional cigarette products.

Smoke Tax: Saddling Smokers with Costs of Health Reform Isn’t Fair
This Salt Lake Tribune editorial explains that a $2 tax on each pack of cigarettes is not equitable and will disproportionately hurt low-income Utahns. The editorial also notes smokers already contribute an enormous sum of money to Utah’s government.

Tobacco: Regulation and Taxation through Litigation
Professor Kip Viscusi breaks down the social costs of smoking, taking into consideration a wide array of factors including health costs, sick leave, and the lower pension and nursing home care costs incurred by smokers.

Research & Commentary: Study Finds E-Cigarettes Would Prevent 6.6 Million Premature Deaths–commentary-study-finds-e-cigarettes-would-prevent-66-million-premature-deaths
In this Research & Commentary, Heartland Institute State Government Relations Manager Lindsey Stroud examines an October 2017 Tobacco Control study that found electronic nicotine delivery systems (ENDS) might help extend life for millions of people. The authors of the study found there was an estimated 6.6 million fewer deaths and more than 86 million fewer-life-years lost over a ten year period because of ENDS products. Stroud concludes the use of ENDS could also help improve the budgets of numerous state programs, including Medicaid.

Research & Commentary: Public Health Officials Urge Use of Electronic Nicotine Delivery Systems
In this Research & Commentary, Heartland Institute State Government Relations Manager Lindsey Stroud notes the importance of NHS Health Scotland’s joint statement encouraging the use of electronic nicotine delivery systems (ENDS) as an alternative to tobacco products. NHS Health Scotland, Public Health England, and other groups have found ENDS are 95 percent less harmful than tobacco cigarettes.

Research & Commentary: Qualitative Study on E-cigarettes Shows More Evidence of Tobacco Harm Reduction
In this Research & Commentary, Heartland Institute State Government Relations Manger Lindsey Stroud examines a study, published in The International Journal of Environmental Research and Public Health in June 2016, that provides additional evidence showing e-cigarettes and vaporized nicotine products (VNPs) are an effective tobacco harm-reduction tool.


Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, our Consumer Freedom Lounge, or PolicyBot, Heartland’s free online research database.

The Heartland Institute can send an expert to your state to testify or brief your caucus, host an event in your state, or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact John Nothdurft, Heartland’s government relations director, at [email protected] or 312/377-4000.