Court Dismisses Suit Filed by Fired Smoker

August 13, 2009 ( - The U.S. District Court for the District of Massachusetts has dismissed a lawsuit against Scotts Co. brought by an employee fired within two weeks of his hiring for testing positive for nicotine.

In his suit, Scott Rodrigues claimed Scotts violated the Employee Retirement Income Security Act (ERISA) Section 510 by interfering with attainment of benefits to which he was entitled (see MA Smoker Wins Right to Proceed on ERISA Claim ).   However, the court pointed out that since coverage under Scotts benefits plan starts after 60 days of continuous full-time employment, and Rodrigues was fired after only two weeks, he was not a participant in the plan and cannot make an ERISA claim.

In addition, the court found that “Section 510 forbids discrimination by a variety of employment-related actions, but it does not, by its terms, forbid discrimination by means of a decision not to hire,” and Rodrigues’ continued employment was contingent on successful completion of a pre-hire screening, including the drug screen.

The District Court also dismissed Rodrigues’ claim that Scotts violated his privacy under Massachusetts law, saying Rodrigues’ never tried to keep his smoking private and he submitted urine for the drug testing. The court said Rodrigues was aware of Scotts’ anti-smoking policy.

Scotts announced in 2005 a mandate for employees to stop smoking or be fired as part of a wellness program. As part of its policy, it will not hire smokers. Scotts said the policy is designed to reduce health care costs.

Though the employer won this case, an “informal discussion letter” from the Equal Employment Opportunity Commission earlier this year warned employers that that requiring workers to undergo a health risk assessment could violate the Americans with Disabilities Act (ADA) (see EEOC Warns about ADA Impact of Health Assessments ).

The opinion in the Scotts’ case is here .