Fired Off-The-Job Smoker Sues
Dec 15, 2006, 17:14
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A Massachusetts man has sued The Scotts Co., the lawn care giant, for firing him after a drug test showed nicotine in his urine, indicating that he had violated a company policy forbidding employees to smoke on or off the job. The suit, filed Wednesday in Suffolk Superior Court, is highly unusual because it involves an employee who was terminated for engaging in legal activities away from the workplace. The lawyer who filed the complaint said he believes it is the first of its kind in the state. Scotts announced last year that it would no longer hire tobacco users, a policy company officials said was intended to improve employee wellness and drive down the company's healthcare costs. But civil libertarians say it violates personal privacy rights and could be used to mask age discrimination or other illegal behavior. "Employers should be greatly concerned about how employees perform their jobs and what happens in the workplace, but how employees want to lead their private lives is their own business," said Boston lawyer Harvey A. Schwartz, who represents Scott Rodrigues in his civil rights and privacy violation lawsuit against Scotts. "Next they're going to say, 'You don't get enough exercise' or 'Both your parents died of a heart attack at age 45 so we don't want to hire you because you're more likely to need medical care,"' Schwartz said. "I don't think anybody ought to be smoking cigarettes, but as long as it's legal, it's none of the employer's business as long as it doesn't impact the workplace." Jim King, a Scotts spokesman, said company lawyers had not seen the lawsuit and would not comment on it. But he said the tobacco policy is intended to reduce medical costs for the self-insured company, which he described as deeply committed to promoting good health among its employees; he noted that Scotts built a $5 million wellness center at its Marysville, Ohio, headquarters last year and reimburses some workers for fitness club memberships. And while Scotts screens all new hires for drugs, including nicotine, he said it does not conduct random drug testing, as some other employers do. "We're not interested in dictating our employees' behavior in their free time because it doesn't affect us," King said, "but the issue of smoking we deem different because there is no dispute whatsoever that there's a direct correlation between increased health risk and healthcare costs. So what we're really saying is we're not willing to underwrite the risks associated with smoking." The case offers another example of aggressive antismoking policies being adopted nationwide. In Massachusetts last year, a Boston Housing Court jury ruled that a South Boston couple could be evicted from their apartment for heavy smoking, even though smoking was allowed in their lease, because their neighbors were irritated by the smell of smoke. Although the days when employees could smoke at work are not that distant, employers have been cracking down vigorously on smokers in recent years. Federal law prevents companies from insuring nonsmokers while refusing to insure smokers, but some companies charge higher healthcare premiums to employees who smoke and some make workers certify in writing that they do not use tobacco as a condition of employment or healthcare coverage. Other private and public employers that have bans on the hiring of smokers include the World Health Organization, Union Pacific Corp., Weyco Inc., and Alaska Airlines. Some states have pushed back, however. About 30 states prohibit workplace policies that discriminate against smokers, including numerous southern states where tobacco is grown, but Massachusetts is not among them. Rodrigues, 30, a pack-a-day smoker when he was hired by Scotts's Sagamore Beach location earlier this year, was fired in September after a drug test showed high nicotine levels in his urine. He had previously received a written warning after a supervisor saw a pack of cigarettes on the dashboard of his car. At the time of the test, Rodrigues - who was aware of the policy when he was hired - was trying to kick the habit and had cut back to about a half-dozen cigarettes daily. He believes the Nicorette antismoking gum he had been chewing may have contributed to his elevated nicotine levels. "That was the really crazy thing - I was trying to stop smoking," he said. Rodrigues said he decided to file suit because, "What's to make them stop at just cigarettes? If they're a Republican company, can they try and figure out who you vote for and if you vote for the Democrats, they'll fire you? What if you don't want to hire women?" "It sounds a little extreme," he added, "but it also would have sounded extreme to me five years ago if you told me you could be fired if nicotine is found in your drug test." Scotts's policy was announced last year by chief executive Jim Hagedorn, a former two-pack-a-day smoker, and went into effect Oct. 1 of this year, giving the company's roughly 7,000 employees nearly a year to prepare. All employees are now asked to certify in writing whether they use tobacco, and to update the company if their status has changed. If a nonsmoker later begins to smoke, that person could be fired, "but that's not the goal," said King, the Scotts spokesman. "Our goal is not to terminate anybody; our goal is to provide tools to people to stop smoking," he added, noting that Scotts will pay for employees and their family members to take part in smoking cessation programs. "What we're trying ultimately to create is a smoke-free workforce, as well as workplace, in states where state laws allow us to do that," King said. Rodrigues said he was treated particularly unfairly because he was fired before the policy had officially taken effect and he was never offered help to quit smoking. Edward L. Sweda, a senior attorney with the Public Health Advocacy Institute at the Northeastern University School of Law who researches tobacco litigation, said he believes Rodrigues has "a couple of major obstacles to overcome," including his awareness of the Scotts policy when he was hired and his admission that he smokes. Sweda also noted that a state law, upheld by the Supreme Judicial Court, makes smokers ineligible to be hired as police officers or firefighters in the state, as of Jan. 1, 1988.
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