Where There’s Smoke, You’re Fired, Revisited

December 1st, 2006 by

In March of 2005 we blogged the issue of firing people who smoke. At that time, we wrote about the strict non-smoking policies of Weyco, a company in the health care field. When you’re in health care, prohibiting smoking is a logical extension of your fundamental business. But what if you’re in the lawn care business? Can you still fire people who smoke off the job?
The Scotts Company did just that. They fired 30 year old Scott (obviously no relation!) Rodrigues of Bourne, Massachusetts, when a drug test came up positive for nicotine. Scott is now suing Scott for violating his privacy and civil rights. The company, a subsidiary of Scotts-Miracle Gro, Inc., instituted a policy early this year forbidding smoking, on or off the job. The policy has only been implemented in the 20 states that apparently allow it (which include Massachusetts). The company is upfront about the requirement. It’s posted on the website for potential hires. They perform a post-hire test on all new employees for nicotine. Their stated goal is to promote healthy lifestyles and hold down insurance costs. [IMPORTANT NOTE: They are self-insured for health.]
Rodrigues, a pack a day smoker, says he never indulged in the habit during his few weeks on the job. Ironically, he was trying to quit. Alas, he was chewing nicotine-loaded Nicorette gum on his way to the drug test! (Needless to add, he drove to the test without bothering to ask what they were going to test for.)
Massachusetts has never specifically addressed the issue of smoker’s rights. Mr. Rodrigues’s attorney, Harvey Schwartz, says that testing for nicotine would be OK if the substance directly affected the work, which it does not. “Being compelled to provide a urine sample and the information that the sample contains is a violation of his privacy, where it has no relation to his job.”
Other attorneys believe that the company is on solid ground. They see a legitimate business interest for not hiring smokers. As with so many issues impacting the workplace, the final decision will be up to the courts.
Health Insurance and Comp
The Insider is especially intrigued by the self-insurance angle. The Scott Company recognizes the well-documented relationship between smoking and myriad health problems. They assume that by not hiring smokers, the cost of their workers’s health insurance will go down. That’s true up to a point. While they can try to dictate the behavior of their employees, they cannot impose their standards on the employee’s family members. A non-smoking employee might well go home to a house full of second-hand smoke. Could you be fired for being married to a smoker?
Beyond that, there is the issue of exposure to the “Miracle-Gro” chemicals that the company spreads on lawns. If an employee were to develop lung cancer, and if the employee demonstrates that he does not smoke (using his clean nicotine tests as proof), he might have a clear path to demonstrating that his illness is work-related and thus compensable under workers comp. That would surely be an unintended consequence of a non-smoking policy.