Court Upholds Mass. Employer’s Firing of Smoker

A combination of the plaintiff’s behavior and employment-law technicalities has sunk a lawsuit against a Massachusetts company that fired an employee for smoking, the Boston Globe reported Aug. 8.

Scott Rodrigues was fired by The Scott’s Co. for violating company policy banning workers from smoking on or off the job. Rodrigues tested positive for nicotine in a drug test.

Rodrigues sued, but a federal judge ruled that his smoking was not a protected privacy interest because Rodrigues made little attempt to keep his smoking a secret: he admitted having smoked in public and being caught by a supervisor with a pack of cigarettes on the dashboard of his car.

“It is clear from those admissions that Rodrigues has not attempted to keep the fact of his smoking private,” wrote U.S. District Court Judge George A. O’Toole Jr., in dismissing the lawsuit.

O’Toole added that the firing did not violate a federal law guaranteeing workers the right to their benefits, saying that Rodrigues was not a bona fide employee when he was fired and that his employment was conditioned on passing the drug test. A Scott’s official said the policy has only been used to fire job applicants, not current employees.

Rodrigues’ lawyer plans to appeal the ruling. “It’s your basic slippery slope,” said attorney Harvey A. Schwartz. “If they can fire an employee who smokes, and that’s unhealthy, what if his wife smokes and she’s on the insurance plan?”

Scott’s gave workers a year’s notice when the no-smoking policy went into effect in 2006, and has paid for smoking-cessation programs.

Schwartz said the appeal in the case will ask “an important fundamental legal question, which is whether an employer can fire an employee who smokes on his own time away from work because the employer wants to save on medical insurance costs.”

Edward L. Sweda Jr., of the Tobacco Products Liability Project at Northeastern University School of Law said “there is no inherent right to both smoke and have a particular job,” although some states protect workers from penalties for smoking off the job.

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