The Scotts Company, manufacturer of fertilizer and other lawn care products, forbids employees from smoking tobacco products–on or off the job. In September Scotts’ subjected its employee Scott (love these coincidences) Rodrigues of Buzzards Bay, MA to a urine test, which disclosed nicotine in his system. Scotts fired Rodrigues for violating its no-smoking policy. The Boston Globe reported today that Rodrigues filed a wrongful discharge suit against the company in Boston’s Suffolk Superior Court, claiming it violates public policy to terminate him for engaging in a legal activity. Harvey A. Schwartz, Rodrigues’ lawyer, believes this is the first case of its kind in Massachusetts.
This may be the first case in Massachusetts, but it is not the first time a company has terminated an employee for smoking cigarettes. For example, in 2003 Weyco, Inc., a Michigan health-care company, received national attention after adopting its “healthy lifestyle” policy and announcing that it would no longer hire or, after January 1, 2005, continue to employ smokers. Weyco offered smoking-cessation services at its expense to employees who wanted to quit, and it stuck to its policy. When it went into effect in 2005 Weyco fired four employees for refusing to submit to tests to determine the presence of nicotine, and another employee quit before the policy went into effect.
Scotts, like Weyco, adopted its no-smokers policy to attempt to reduce the costs of employee medical coverage. The Globe article quotes a Scotts’ spokesman: “We’re not interested in dictating our employees’ behavior in their free time because it doesn’t affect us . . . 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.”
According to The Globe, Rodrigues knew of Scotts’ no-smokers policy when he took a job early in 2006. Scotts does not administer random drug tests to employees but Rodrigues had received a written warning that his smoking was an issue after a supervisor saw a pack of cigarettes in his car, thereby giving Scotts reason to single him out for testing.Rodrigues does not have a claim for employment discrimination — his status as a smoker does not make him a member of a protected class in Massachusetts, which has no law protecting smokers.
Today, smokers; tomorrow, those who eat too much Ben & Jerry’s? Beyond such obvious tongue-in-cheek scenarios, the practice of terminating employees for engaging in legal activities that can affect a company’s bottom line has insidious implications. I downhill ski (increasing my risk of ACL and MCL injuries), ride a road bike (increasing my risk of head injuries), swim alone in a lake (increasing my risk of drowning), often use a gasoline-powered chain saw (increasing my risk of death or injury from saw kickback), and yes, in fact, I eat way too much ice cream (increasing my risk of cardiovascular disease and obesity, which in turn increases my risk of divers ailments). I can distinguish the risk of smoking from the risks associated with all of these activities, but the problem is opening that door in the first instance.
Sacha Pfeiffer, Off-the-job smoker sues over firing, The Boston Globe 30-Nov-06, p. 1; Marisa Schultz, Amy Lee, & Eric Lacy, Workers fume as firms ban smoking at home, The Detroit News, 27-Jan-05; Company Fires All Employees Who Smoke, WRAL.com, 25-Jan-05